Plaintiff was granted leave to amend her bill of particulars, and to plead an additional theory of negligence which first came to light about a month after the note of issue was filed, in Cherebin v. Empress Ambulance Serv., Inc., which was decided by the First Department on August 30, 2007.

The court noted that leave to amend pleadings, including a bill of particulars, is to be freely given, absent prejudice or surprise, and that, in the absence of prejudice, mere delay is insufficient to defeat the proposed amendment. If the delay is an extended one, though, plaintiff must offer an affidavit of reasonable excuse and an affidavit of merit.

The court gave short shrift to defendant's allegations that plaintiff's new theory of liability was a surprising, substantial departure from the one articulated in the original bill of particulars, noting that the amendment is based on defendant's own records and the depositions of its own employees, all of which has been readily available to defendant since at least the time of the motion. The court did, though, grant defendant further, reasonable discovery on the new theory.