In the Matter of Kathleen Trader, Individually and as Administratrix of the Estate of Russell D. Henning, Deceased, et al., Appellants, v. State of New York, Respondent

In the Matter of Kathleen Trader, Individually and as Administratrix of the Estate of Russell D. Henning, Deceased, et al., Appellants, v State of New York, Respondent. (Claim No. 89885.) [687 NYS2d 504] [MAJORITY] Order unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Although the Court of Claims did not abuse its discretion in granting the motion of defendant to strike allegations of negligent training, supervision and education of its employees from claimants’ supplemental bill of particulars on the ground that a new theory of liability was being asserted, we exercise our discretion to grant claimants’ alternative request to amend the amended notice of claim to add that theory. The new theory “is based upon the same facts as alleged in the original [notice of claim]” (Garrison v Clark Mun. Equip., 239 AD2d 742, 743). Although discovery has been completed, “[m]erely because the amendment may require defendant [ ] to conduct additional discovery does not, alone, constitute sufficient grounds to justify denial” of claimants’ request (Garrison v Clark Mun. Equip., supra, at 743). We therefore modify the order by granting claimants’ alternative request to amend the amended notice of claim. (Appeal from Order of Court of Claims, Corbett, Jr., J. — Amend Pleading.) Present — Denman, P. J., Pine, Pigott, Jr., Callahan and Balio, JJ.