Opinion
March 1, 1978
Appeal from the Erie Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: In this action for damages for personal injuries, Special Term's denial of plaintiff's motion for leave to serve a supplemental bill of particulars was an improvident exercise of discretion. "Leave to serve an amended bill of particulars, in the absence of a showing of prejudice, should be freely granted." (Portilla v Boyke, 51 A.D.2d 539, citing CPLR 3025, subd [b] and 3 Weinstein-Korn-Miller, N Y Civ Prac, par 3041.21; see, also, Cossart v Fredenburgh, 50 A.D.2d 993; Kerlin v Green, 36 A.D.2d 892.) Here, affidavits supporting the motion, made by plaintiff and one of his attending physicians, were submitted with the proposed supplemental bill of particulars (see Bernas v Kepner, 36 A.D.2d 58). A statement of readiness had not yet been filed in the action, and the record indicates no prejudice to defendant and no inordinate delay on the part of plaintiff. Plaintiff has also appealed from Special Term's denial of his motion for leave to serve an amended complaint increasing the ad damnum from $95,000 to $600,000. Where, as here, the motion, which was made before the statement of readiness was filed, was supported by affidavits of plaintiff and a physician (see Gardner v Fyr-Fyter Co., 55 A.D.2d 816), it was error to deny the motion in the absence of showing of any prejudice to defendants. (Smith v University of Rochester Med. Center, 32 A.D.2d 736; Kerlin v Green, 36 A.D.2d 892.)