In P* v. A* G* Corp., the Appellate Division, First Department, affirmed the lower court’s denial of the plaintiff’s cross-motion to amend her bill of particulars. The case arose from a personal injury action in which P* alleged she fell on a staircase at a golf facility operated by the defendants. The motion to amend was filed five years after the action commenced and three months after the note of issue, a procedural milestone indicating the case is trial-ready. Given this timing, the plaintiff was obligated to provide a reasonable excuse for the delay, which she failed to do.
The court emphasized that the plaintiff’s expert had inspected the staircase before the lawsuit began, yet the plaintiff did not explain why the additional statutory and code-based theories of liability were not included in the original bill of particulars. This omission undermined her request to amend. Moreover, the court found the proposed amendments to be substantively meritless. While courts generally permit amendments that elaborate on existing claims without introducing new theories of liability, this leniency does not extend to amendments that rely on inapplicable or irrelevant legal provisions.
Specifically, the codes the plaintiff sought to invoke pertained to staircases serving as means of egress from buildings, which did not describe the outdoor staircase involved in her fall. Other proposed code violations were either too vague to establish liability or derived from code versions enacted after the building’s construction, rendering them inapplicable. The Fire Code provisions were similarly irrelevant, and the plaintiff’s attempt to invoke the Landmarks Preservation Law was dismissed outright, as she failed to show how such a violation could support a negligence claim.
In sum, the appellate court concluded that the plaintiff’s proposed amendments were both procedurally untimely and legally deficient, and it affirmed the trial court’s decision to deny the motion without costs.
Was her motion way over par?
# # #
DECISION