March v. St. Volodymyr Ukranian Catholic ChurchMarch v. St. Volodymyr Ukranian Catholic Church
Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered May 7, 1985 in Sullivan County, which denied defendant’s motion to strike certain items of special damages set forth in plaintiffs’ supplemental bill of partiсulars and granted plaintiffs’ cross motion to amend the complaint.
Plaintiff William March (hereinafter plaintiff), a self-employed contractor, was in the course of performing work pursuant to a contract with defendant when he fell from the roof of a structure on defendant’s property and sustained serious injuries which prevented his return to work. Plaintiff and his wife commenced this personal injury action. The complaint alleged that as a result of the negligеnce of defendant, plaintiff "was caused to sustain serious and permanent injuries * * * [and] lose substantial periods оf time from his normal vocation and activities”.
In a verified bill of particulars, plaintiff asserted that he had been continuously absent from work since the accident on October 3, 1980. At an examination before trial (EBT), plaintiff testified that he had not worked since the accident and indicated his intention to claim lost income as an element of his damages. Counsel for the parties agreed at this EBT that plaintiff’s attorney would furnish defendant’s counsel with plaintiff’s Fedеral income tax returns for the taxable years 1978, 1979 and 1980. Upon completion of discovery, the case was рlaced on the Trial Calendar by service of a note of issue and statement of readiness on or about April 30, 1984.
In December of 1984, plaintiff served a supplemental bill of
Defendant first contends that it was error to permit amendment of the complaint on the ground that plaintiff failed to submit an affidavit demonstrating the reason for the delay in moving to amend and showing that the amendment was meritorious. Defendant alsо argues that amendment would be futile since the claim would be barred by the Statute of Limitations. We disagree.
Special Term properly granted plaintiff leave to amend the complaint to assert claims for prior and future lost earnings. CPLR 3025 (b) provides that "[a] party may amend his pleading * * * at any time by leave of court” and that "[l]eave shall be freely given upon such terms as may be just”. The purpose of CPLR 3025 (b) is to ensure that the controversy before the сourt is fully resolved (see, De Forte v Allstate Ins. Co.,
An affidavit of reasonable excuse for any delay and of merit is generally required before leave to amend a pleading will be granted (see, Anos Diner v Pitios Gourmet,
Defendant’s argument that Special Term incorrectly refused to strike plaintiffs supplemental bill of particulars is, in part, well taken. Insofar as the lost earnings aspect of the supplemental bill is concerned, there was no showing of prejudice to defendant. Defendant had noticе of the claim and was afforded discovery as to that item of damage. However, as to the claim of loss оf income from the forced sale of rental property, a different result obtains. Defendant was not given notiсe of this item of damage in the complaint or bill of particulars. This item of loss was first asserted in the supplementаl bill some seven months after the note of issue and statement of readiness were served. No reason for this delay was set forth by plaintiff in an affidavit. Judicial discretion in allowing such an amendment should be "discreet, circumspect, prudent and cautious” (Symphonic Elec. Corp. v Audio Devices,
Order modified, on the law and the facts, without costs, by striking so much of the supplemental bill of particulars as asserts a claim for the forced sale of rental property, and, as so modified, affirmed. Mahoney, P. J., Kane, Weiss, Mikoll, and Levine, JJ., concur.