Barbara Horwitz v. George Nagamatsu Et Al. Appellants

In a medical malpractice action, the appeals are from an order of the Supreme Court, Queens County (Lerner, J.), dated November 22, 1983, which granted plaintiffs motion to amend the complaint and add a cause of action for wrongful death. para. Order affirmed, without costs or disbursements, on condition that the plaintiffs attorneys personally pay $350 to each of the eight appellants. The plaintiffs attorneys time to make the payments is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. If the condition is not complied with, order reversed, with one bill of costs, and motion denied. para. It is well settled that courts will generally allow amendments to pleadings and bills of particulars, even at or after trial, absent proof of actual prejudice to the other parties (see Kurnitz v Croft, 91 A.D.2d 972; Witonski v Feirstein, 76 A.D.2d 920; Palmer v New York City Tr. Auth., 33 A.D.2d 119). Defendants herein can claim no prejudice or surprise arising from lack of notice. Verified bills of particulars, served about four years prior to the filing of a note of issue, alleged that the negligence of each of the defendants resulted in decedents death and specifically mentioned funeral expenses as an item of damages. Under these circumstances, the lack of prejudice to defendants warranted the granting of leave to plaintiffs to amend their complaint. para. Nevertheless, we consider the delay of plaintiffs attorneys, in moving to amend, to have been inordinate and inexcusable and believe that the court should have conditioned the granting of plaintiffs motion upon payment of costs by plaintiffs attorneys personally to each of the appellants (see Kurnitz v Croft, supra). Accordingly, we have imposed the costs as indicated.