STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

___________________________________

BRIAN W. MATTESON,


Plaintiff

-vs- Index #H-01116


TOWN OF POMFRET and

TOWN OF POMFRET HIGHWAY DEPARTMENT,

 

Defendants

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BURGETT & ROBBINS

(Mary Speedy Hadju,

Esq. of Counsel) for

Plaintiff



LUSTIG & BROWN

(Katherine A. Fijal,

Esq. of Counsel) for

Defendants



DECISION and ORDER



GERACE, J.


For a second time, plaintiff has moved to amend his bill of particulars to reflect that the first injury "caused and/or

contributed to the Plaintiff's present permanent disability".


There is no more proof that the first injury "caused" the

present permanent disability, but, there is an affidavit of a

physician that the earlier accident, the subject of this suit,

contributed to plaintiff's current permanent disability which

he claims renders him "totally unemployable".


David D. Siegel, in his NEW YORK PRACTICE, points out that the courts are quite free even with an amendment at trial as long as no party can claim prejudice because of it. Sec. 242, 404.


KERLIN V. GREEN, 36 AD2d 892, 320 NYS2d 200 (4th Dept) held that in the absence of prejudice, the motion should be freely granted. CPLR 3025(b); SIEGEL, supra.


Defendants have not pointed to any prejudice. In such a

case, it would be an abuse of discretion to refuse the amendment. ACKERMAN V. CITY OF NEW YORK, 22 AD2d 790, 253 NYS2d 775.


The Court notes that in its January 1994 order denying

defendant's motion to strike the note of issue it ordered

plaintiff to execute medical authorizations as to the subsequent work place accident and authorizations for Workers' Compensation records on that accident.


Plaintiff's motion is granted, with $100 costs and $250 in attorney fees awarded to defendants. The case is ordered off the trial calendar, pending defendants'certification it has completed any further discovery made necessary by the grant of the motion to amend the bill of particulars, or, July 1, 1995, whichever is sooner.


Dated: April 11, 1995

Mayville, New York


_____________________________

JOSEPH GERACE

Justice of Supreme Court