Amending and Supplementing Pleadings and Bills of Particulars

• Pages: 225-266
• Author: Carl T. Grasso,Edward L. Birnbaum,Ariel E. Belen

PLEADINGS/BILLS

OF PARTICULARS

7-1

CHAPTER 7

AMENDING AND SUPPLEMENTING

PLEADINGS AND BILLS OF PARTICULARS

I. AMENDING AND SUPPLEMENTING PLEADINGS

A. General Points

§7:01 Distinction Between Amendment and Supplement

§7:02 Typical Reasons for Amending or Supplementing Pleadings

§7:03 Caution: Avoid Failure of Proof

§7:04 Response to Amended or Supplemented Pleadings

B. Methods for Amending Pleadings

§7:10 Amendment Without Leave or Stipulation

§7:11 Amendment and Supplement by Stipulation

§7:12 Amendment and Supplement by Leave

C. Motion for Leave to Amend or Supplement

§7:20 Movant’s Burden

§7:21 Merits of Application

§7:22 Prejudice

§7:23 Finding of Prejudice Requires New Facts

§7:24 Timing of the Motion, and Prejudice

§7:25 Amendment to Increase Ad Damnum Clause

§7:26 Amendment Seeking Punitive Damages

§7:27 Statute of Limitations and Relation-Back Doctrine

§7:28 Conditions on Grant

§7:29 Amendment to Assert Exception to CPLR Article 16

§7:30 Amendment to Add a Party

§7:31 Amendment to Assert Affirmative Defenses Frequently Not Allowed

§7:32 Amendment to Assert Res Judicata and Collateral Estoppel

§7:33 Amendment Not Allowed When a Parallel Federal Action Is Pending

D. Motion Papers

§7:40 Required Papers

§7:41 Time for Bringing Motion

§7:42 Notice of Motion or Order to Show Cause

§7:43 Proposed New Pleading Must Be Included

§7:44 Affidavit of Merit

§7:45 Service of Filing

§7:46 Opposition Papers

PLEADINGS/BILLS

OF PARTICULARS

New York Trial Notebook 7-2

II. AMENDING AND SUPPLEMENTING BILL OF PARTICULARS AND OTHER DISCOVERY RESPONSES

§7:60 Bill of Particulars Defined

§7:61 One Amendment as of Right Before Note of Issue; After ward Must Move to Amend

§7:62 Personal Injury Actions: Supplement up to 30 Days Before Trial

§7:63 Standards for Granting Motion to Amend or Supplement Bill of Particulars

§7:64 Supplement Other Discovery Responses

FORMS

Form 7:10 Stipulation to Amend or Supplement Pleadings

Form 7:20 Notice of Motion to Amend Complaint and Bill of Particulars to Increase Ad Damnum Clause

Form 7:25 Order to Show Cause Why Complaint and Bill of Particulars Should Not Be Amended to

Increase Ad Damnum Clause

Form 7:30 Affirmation in Support of Motion to Amend Complaint and Bill of Particulars to Increase

Ad Damnum Clause

Form 7:40 Proposed Amended Verified Complaint

Form 7:50 Plaintiff’s Affidavit in Support of Motion to Amend Complaint and Bill of Particulars to

Increase Ad Damnum Clause

Form 7:60 Notice of Motion to Amend Bill of Particulars

Form 7:70 Affirmation in Support of Motion to Amend Bill of Particulars

PLEADINGS/BILLS

OF PARTICULARS

7-3 Amending and Supplementing Pleadings and Bills of Particulars §7:02

I. AMENDING AND SUPPLEMENTING PLEADINGS

A. General Points

§7:01 Distinction Between Amendment and Supplement

An amended pleading replaces the pleading it amends. It is a complete pleading and should repeat the allega-

tions in the original pleading that are not changed. It supersedes the original pleading. [St. Lawrence Explosives

Corp. v. Law Bros. Contracting Corp., 170 AD2d 957, 566 NYS2d 127 (4th Dept 1991).]; Lsirowkop, LLC v. Behr,

234 AD3d 951 (2d Dept 2025).]

CAUTION:

To avoid failure of proof, make sure that all allegations contained in the original complaint that you wish

to use to offer proof at trial are contained in the amended pleading. [For failure of proof, see §7:03.]

A supplemental pleading is used to set forth transactions or occurrences that are additional or subsequent to

those in the original pleading. [CPLR 3025(b).] A supplemental pleading is independent of the original pleading

and is considered an additional pleading. It need not reallege the material in the original pleading. Absent a court

order, a supplemental pleading does not supersede the pleading it supplements. [County of Nassau v. Cedric Con-

struction Corp., 100 AD2d 890, 474 NYS2d 549 (2d Dept 1984).]

NOTE:

While it is generally good practice to be over-cautious and seek court approval of any perceived changes

or additions, court approval is not necessary if the original complaint adequately covers the “amendment.” In

Hoffman v. Fort 709 Associates, L.P., 204 AD3d 516, 164 NYS3d 818 (1st Dept 2022), the motion court denied

plaintiff’s motion to amend the complaint to assert a claim under General Business Law §349 (Consumer Fraud

and Deceptive Practices Act). The First Department held that the motion court erred because “[t]he claim was

not a proposed amendment. A review … reveals that the claim was retained from the original complaint with

only minor edits … Thus, leave to assert the claim was not required.” Hoffman at 518. Of course, if plaintiff had

not made the motion and simply asserted the GBL claim at trial, the trial court might have had a problem with

that. However, the Court of Appeals in Plavin v. Group Health Inc., 35 NY3d 1, 10, 124 NYS3d 5 (2020)

“explained that, to state a claim under [GBL] sections 349 or 350, a plaintiff must allege that a defendant has

engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury

as a result of the allegedly deceptive act or practice.” Thus, it may be that if those allegations were made in

the complaint, there was no need to explicitly allege a violation of GBL §349.

[For details on drafting pleadings, see Barr, et al, New York Civil Practice Before Trial, Ch 15, “Pleadings”

(James Publishing).]

§7:02 Typical Reasons for Amending or Supplementing Pleadings

The application to amend is generally made by the plainti, but can be made by the defendant. Reasons to

amend the pleading at the post note of issue stage generally fall into two main categories:

• First, when some key fact or theory was not set forth in the original pleading.

• Second, when the injury has changed or damages have changed since service of the original pleading or

bill of particulars.

There are some practical situations where one should seek to supplement a pleading as opposed to amend it.

In particular, where the event sought to be brought to the jury’s attention took place after service of the original

pleading, it is appropriate to seek leave to supplement. [Werner Spitz Const. Co. v. Vanderlinde Electric Corp., 64

Misc2d 157, 314 NYS2d 567 (County Ct, Monroe County 1970).]

Changes in substantive law while the action is pending can serve as the basis for granting a motion to amend

the pleading. [See Beuschel v. Malm, 114 AD2d 569, 494 NYS2d 185 (3d Dept 1985) in which during the pendency