Opinion
December 4, 1989
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the orders are affirmed, with one bill of costs.
While the general rule in deciding motions for leave to amend a bill of particulars is that leave to amend is to be freely given in the absence of a showing of prejudice (see, Maloney v Union Free School Dist. No. 7, 46 A.D.2d 789), judicial discretion in allowing such an amendment on the eve of trial should be "`discreet, circumspect, prudent and cautious'" (Smith v Sarkisian, 63 A.D.2d 780, 781, affd 47 N.Y.2d 878 for reasons stated in mem at App. Div., quoting from Symphonic Elec. Corp. v Audio Devices, 24 A.D.2d 746; see also, Raies v Apple Annie's Rest., 115 A.D.2d 599).
The record discloses no satisfactory explanation for the belated attempt at amendment of the bill of particulars. Further, substantial prejudice to the defendants is apparent in the amendment which seeks to add a new theory of recovery which was not readily discernible from the allegations in the original complaint and bill of particulars (see, Gutierrez v Enright, 91 A.D.2d 972). In addition, the affidavit of the physician in support of the plaintiff's motion is insufficient to establish either a departure from accepted practice or connection to the alleged injury.
Accordingly, it cannot be said that the court improvidently exercised its discretion in denying the plaintiffs' motion (see, Linares v Spencer-Cameron Leasing Corp., 121 A.D.2d 606). Mangano, J.P., Bracken, Kunzeman and Spatt, JJ., concur.