Silverman v. Ashe 22 A.D.2d 659

Order entered June 19, 1964, herein appealed from, unanimously modified as hereinafter indicated. This action for wrongful death, pain and suffering, medical expenses and loss of services was commenced August 15, 1961. The suit arose out of an automobile accident which occurred October 22, 1960. Plaintiff claimed in Ms bill of particulars served in January, 1962 that decedent, who died April 29, 1961, suffered an injury to the heart of coronary occlusion with myocardial infarction. The case was noticed for trial for the May 1962 Term. In June, 1964, after the case had been marked ready for trial and was being held before one of the Justices of the Supreme Court, plaintiff moved at Special Term to amend his bill of particulars to include a claim of aggravation and precipitation of a previously existing heart condition. Plaintiff asserted its omission from the bill previously served was due to an oversight of plaintiff’s counsel. The motion to amend was granted. However, no reasonable excuse is offered for the extended delay in moving to amend. All of the information upon which plaintiff predicates Ms request was in plaintiff’s possession before the action was commenced. A delay until the very eve of trial under these circumstances should not be lightly countenanced. Accordingly, the order appealed from is modified in the exercise of discretion to grant the motion upon condition that plaintiff pays a full bill of costs of the case to date together *660with the costs of this appeal, and is otherwise affirmed (CPLR 3042, 8107). Settle order on notice. Concur — Breitel, J. P., Valente, Stevens, Eager and Bastow, JJ.