58 A.D.2d 764 | N.Y. App. Div. | 1977
Order, Supreme Court, New York County, entered on or about February 10, 1977, granting plaintiffs’ motion for leave to serve an amended bill of particulars, unanimously affirmed, without cost and without disbursements. The subject matter of the amendment is not a new cause of action and could well have been proved under the broad language of the complaint and of paragraph 13 of the original bill of particulars. No demonstration of unwarranted prejudice to defendants has been made. The motion was supported by an affidavit of plaintiff Lopez relating to the subject of the amendment—an alleged defective second egress door. Lopez declares that he was unaware of its significance and, therefore, did not advise his counsel of same. The existence of the second doorway was raised at plaintiff Lopez’ examination before trial by defendants. CPLR 3025 (subd [b]) provides that "Leave shall be freely given upon such terms as may be just”. Special Term in permitting the amendment appropriately provided leave to defendants to take the deposition of plaintiff Lopez in conformance with the spirit of CPLR 3025, further mitigating defendants’ conclusory assertion of undue prejudice. Concur—Murphy, P. J., Lupiano, Birns and Capozzoli, JJ.
