Mario Borrani, Plaintiff, v. The Estate of Mercedes Borrani by Executor Grace Borrani, Defendant. (2026)

Plaintiff Mario Borrani moves pursuant to CPLR § 3025 (b), for an order granting plaintiff leave to amend his verified complaint to correct the date of the alleged incident from June 1, 2023 to March 21, 2023, and deeming the action as set forth in the amended verified complaint to be timely commenced, and for such other and further relief as this Court deems just and proper.

Papers NYSCEF Doc. No.

Notice of Motion - Affirmation in support - Exhibits A-J 31-43

Affirmation in opposition  ¹ - Affirmation of good faith - Exhibits A-CC 47-77

Reply affirmation 80

Upon the foregoing papers, the motion is determined as follows:

Background and Contentions

On March 26, 2025, plaintiff commenced this action seeking to recover damages for injuries allegedly sustained when he tripped and fell on exterior stairs at a property owned by defendant located at 32 Fairfield Road, Yonkers. On November 19, 2025, plaintiff moved for a default judgment based on defendant's failure to timely appear or answer (Motion Seq. No. 1). Defendant served an answer on or about December 11, 2025. At a preliminary conference held on December 12, 2025, plaintiff withdrew the motion for a default judgment, and the Court provided a discovery schedule directing that all discovery be completed by May 29, 2026 (NYSCEF Doc. No. 27).

Plaintiff now seeks to amend the complaint and the bill of particulars to state that the date of the accident was March 21, 2023, asserting that plaintiff provided the incorrect date of June 1, 2023 during the initial intake. Plaintiff's affirmation in support of the motion for a default judgment and the bill of particulars dated February 20, 2026 both state that the accident occurred on June 1, 2023. Plaintiff provided several authorizations for medical providers restricted to the period of "June 1, 2023 to present" (Plaintiff's Exhibits D, E, F). In a March 24, 2026 good faith letter, defendant's counsel stated that St. John's Riverside Hospital advised that they had no records for plaintiff pertaining to treatment rendered from June 1, 2023 to the present (Plaintiff's Exhibit G). Plaintiff's counsel then sought and received the initial treatment records from St. John's Riverside Hospital and Empress Ambulance, confirming that the date of the incident and the date of initial treatment was March 21, 2023 (Affirmation in support, p. 3). All parties appeared at a conference on July 29, 2026 to address the issue (Affirmation in support, Exhibit I).

Defendant opposes the branch of the motion seeking leave to amend the complaint, arguing that plaintiff has not provided a reasonable excuse for the delay in moving to amend the complaint. Defendant contends that prior to commencing the action and prior to serving a bill of particulars, plaintiff's counsel should have obtained and reviewed medical records pertaining to plaintiff's initial care and treatment (Affirmation in opposition, p. 11). Defendant does not oppose the branch of the motion seeking an order deeming the action as set forth in the proposed amended verified complaint to be timely commenced.

In reply, plaintiff argues that many of plaintiff's medical records reflect that plaintiff mistakenly told his providers that he was injured on June 1, 2023. Plaintiff argues that he obtained the relevant medical records in May and June 2026, promptly disclosed them to defendant, and filed this motion. Plaintiff also notes that the mistake permeated the complaint, the affirmation in support of the default judgment, and the bill of particulars, impacting approximately a year of court filings (Reply affirmation, p. 4, 5).

Legal Analysis

"In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Castillo v 37-25 12th Street, LLC, 237 AD3d 889 [2d Dept 2025]; see also CPLR § 3025 [b]). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side" (Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). The party opposing the motion has the burden of demonstrating prejudice or surprise, or that the proposed amendment is palpably insufficient or patently devoid of merit (Ditech Fin., LLC v Khan, 189 AD3d 1360 [2d Dept 2020]). "[A] court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt" (United Fairness, Inc. v Town of Woodbury, 113 AD3d 754 [2d Dept 2014]). Whether to grant leave to amend a pleading is within the sound discretion of the trial court (Clarke v Acadia-Washington Sq. Tower 2, LLC, 175 AD3d 1240 [2d Dept 2019]).

Here, it appears that plaintiff's counsel failed to obtain and review plaintiff's initial treatment records early in the action, instead relying on plaintiff's representation as to the date of the accident. Although plaintiff's counsel states that this was an inadvertent mistake and it does not appear that the incorrect date was provided in bad faith, it is clear that the mistake was caused at least in part by plaintiff's counsel's dilatory and neglectful approach to this case. This approach has resulted in unnecessary work for the defense in processing authorizations, appearing at a conference, and responding to the present motion. It has also delayed the completion of paper discovery and depositions.

However, defendant fails to demonstrate any prejudice or surprise from the delay in seeking leave to amend, or that the proposed amendment is palpably insufficient or patently devoid of merit (see Carter v Nouveau Indus., Inc., 187 AD3d 702 [2d Dept 2020]; see also Edwards v 1234 Pac. Mgt., LLC, 139 AD3d 658 [2d Dept 2016]). Although defendant has had difficulty obtaining plaintiff's medical records, discovery is ongoing and depositions have not yet been held. Plaintiff's motion is predicated on information obtained during the course of discovery and it is made prior to the filing of the note of issue (see Edwards v 1234 Pac. Mgt., LLC, 139 AD3d at 659). Furthermore, a claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions or occurrences to be proved pursuant to the amended pleading (CPLR § 203 [f]; see also Carter v Nouveau Indus., Inc., 187 AD3d 702 [2d Dept 2020]).

Accordingly, it is hereby

ORDERED that the branch of plaintiff's motion seeking leave to amend the complaint to assert March 21, 2023 as the date of the alleged incident is granted; and it is further

ORDERED that on or before October 1, 2026, plaintiff shall serve an amended verified complaint titled as such in the form annexed to the motion as Exhibit B (NYSCEF Doc. No. 34, p. 2-5); and it is further

ORDERED that on or before October 1, 2026, plaintiff shall provide an amended bill of particulars asserting the correct date of the incident, together with updated authorizations for all relevant medical providers with no restriction in dates; and it is further

ORDERED that the branch of plaintiff's motion seeking an order deeming the action as set forth in the proposed amended verified complaint to be timely commenced is granted as unopposed; and it is further

ORDERED that within ten (10) days, plaintiff shall serve a copy of this decision and order with notice of entry upon defendant and file proof of service on NYSCEF.

The foregoing constitutes the decision and order of this Court.

Dated: September 17, 2026

White Plains, New York

ENTER:

HON. ROBERT S. ONDROVIC, J.S.C.

FOOTNOTES

1.   Defendant's affirmation in opposition and in support of its cross motion, entered in NYSCEF as Motion Seq. No. 3, was considered insofar as defendant advanced arguments in opposition to plaintiff's motion. Defendant's cross motion was denied on procedural grounds (NYSCEF Doc. No. 78).

Robert S. Ondrovic, J.