Amending and Supplementing Pleadings and Bills of Particulars

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 209-242

CHAPTER 7

Amending and Supplementing

Pleadings and Bills of

Particulars

§7:01 New York Trial Notebook 7-2

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 allegations 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).]

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 Construction Corp., 100 AD2d 890, 474

NYS2d 549 (2d Dept 1984).]

[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 plaintiff, 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 of the action the Court

of Appeals for the first time recognized the validity

of a claim for emotional damages as a result of

witnessing an accident (the motion was denied

because of tardiness in making the application).]

Where the facts are known, that a claim or

defense had simply not occurred to the party is not

a justification for allowing amendments to pleadings

very late in the game. In Trataros Construction, Inc.

v. New York City School Construction Authority,

46 AD3d 874, 849 NYS2d 86 (2d Dept 2007), the

Second Department held that Supreme Court properly

denied defendant’s bid to add to its answer defenses

and counterclaims based on fraud, where defendant

had known the underlying facts for years, but had

unreasonably delayed until the eve of trial despite

its longstanding awareness of their availability. [But

see Carriero v. New York City School Construction

Authority, 118 AD3d 611, 987 NYS2d 845 (1st Dept

2014) (leave to amend should have been granted,

since the proposed affirmative defense of a setoff

had merit; defendants may have been successive

tortfeasors entitled to a setoff under GOL §15-

108 [see Ch 38:112 et seq.] and CPLR 4545 [see

Ch 38:90 et seq.], as a prior settlement may have

reimbursed plaintiff for the same loss of earnings for

which he was suing.).]

However, when a critical fact is not known,

amendments to pleadings should be allowed. In

Barranco v. Cabrini Medical Center, 50 AD3d

281, 855 NYS2d 431 (1st Dept 2008), plaintiff

had filed a petition for bankruptcy; two months

later, she sustained injury due to defendant’s

alleged negligence; a month and a half later, the

Bankruptcy Court issued an order of discharge;

7-3 Amending and Supplementing Pleadings and Bills of Particulars §7:03

and a month after that, the trustee certified the

bankruptcy estate had been fully administered.

The instant lawsuit was brought nine months later.

Plaintiff had never reported to the Bankruptcy

Court or the trustee the existence of any potential

claim for damages. Defendant eventually learned of

the bankruptcy proceedings, and its trial motion to

amend its answer to plead the affirmative defense

of lack of standing was properly granted. And, the

complaint was properly dismissed on that ground.

A party may move to amend the case caption.

In Anonymous v. Lerner, 124 AD3d 487, 998

NYS2d 619 (1st Dept 2015), the anonymous

plaintiff had alleged that named defendant L had

negligently and fraudulent infected her with genital

herpes. “The determination of whether to allow

a plaintiff to proceed anonymously requires the

court to use its discretion in balancing plaintiff’s

privacy interest against the presumption in favor

of open trials and against any potential prejudice

to the defendant.” [Id. at 487, 998 NYS2d at 619.]

While recognizing that a substantial privacy right

was implicated, the First Department upheld the

trial court’s grant of defendant’s motion, finding

that plaintiff’s privacy concerns were outweighed

by the fact that the action was brought against an

individual [and named] defendant, that it related

to defendant’s private life and reputation and put

plaintiff’s credibility at issue, and also observed

that plaintiff’s concerns were undermined by her

having reported the story to the media before

serving defendant with process.

NOTE:

As a general rule, a defendant is required

to assert affirmative defenses in its answer,

and defenses not asserted are waived. [CPLR

3018 (b), 3211(e); Butler v. Catinella, 58 AD3d

145, 150, 868 NYS2d 101, 106 (2d Dept

2008); De Lisa v. Amica Mutual Insurance

Co., 59 AD2d 380, 382, 399 NYS2d 909, 911

(3d Dept 1977).] Thus, a defendant would

be precluded from offering evidence on the

issues, and the trial court would not charge

the jury on those issues. However, if evidence

comes to light for the first time at trial through

no fault of the defendant, it is not error to

charge the jury on such issues. In Krimkevitch

v. Imperiale, 104 AD3d 649, 960 NYS2d 483

(2d Dept 2013), the trial judge did not err in

charging the jury on whether plaintiff failed

to mitigate damages (an affirmative defense

not asserted in defendant’s answer), where

his failure to follow a prescribed course of

physical therapy first came to light at trial

and plaintiff’s trial testimony in this regard

directly conflicted with his earlier deposition

testimony. The Second Department held that

under these circumstances, the mitigation

charge was proper. The opinion does not state

whether the defendant attempted to move

to amend its answer during the trial based

upon the new evidence. If the defendant had

so moved, plaintiff might still have raised the

issue on appeal, but the issue might have been

more focused. Also, if plaintiff had testified

in his deposition that he had failed to follow

the physical therapy regimen, and defendant

had not moved to amend its answer, the

“circumstances” clearly would have been

different, and defendant might not have been

allowed to assert that defense.

§7:03 Caution: Avoid Failure

of Proof

Counsel may become aware of the need to amend

within 120 days of trial as counsel starts preparing

for trial and finds that lack of a necessary allegation

from the pleadings may result in a failure of proof

at trial. A failure to plead a fact and/or theory can

result in the party being prohibited from offering

proof at trial. A motion to conform the pleading to

the proof is appropriate only where the material has

been received in evidence. [NY City Housing Auth.

v. Winkler, 175 Misc2d 1018, 672 NYS2d 972 (Sup

Ct App Term 2d Dept 1998).] The risk in trying to

conform the pleadings to the proof is the trial court

may keep the evidence from the jury absent proper

notice in the pleading. [For discussion of motions to

conform pleadings to proof, see Ch 37.]

IN PRACTICE: Consider Effect of Denial

Before applying for leave to amend,

consider the likelihood of success and

the impact of failure. If success is highly

likely, apply without hesitation. If failure is

a reasonable probability and the pleadings

are ambiguous, the safer course may be to

proceed to trial and hope the trial court is