
    Marshall Bros., Inc., Appellant, v Economy Paving Co., Inc., Respondent.
    (Appeal No. 1.)
   — Judgment unanimously reversed on the law with costs and plaintiff’s motion to amend complaint granted. Memorandum: It was an improvident exercise of discretion for the court to deny plaintiff’s motion for permission to amend the complaint to allege a cause of action for breach of contract. The proposed amended cause of action for breach of contract rests upon the same facts as the cause of action asserted in the original complaint. Although plaintiff’s complaint was unartfully drafted, in that it couched plaintiff’s cause of action in terms of negligent performance of a contract (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382), it was apparent that plaintiff was seeking damages for a breach of contract.

Defendant contends that it would be unjust at this late stage in the litigation to permit the amendment to the complaint because that would, in effect, relieve plaintiff from any default in replying to the alleged counterclaim in defendant’s answer and from the effect of the preclusion order granted as a result of plaintiff’s failure to provide a bill of particulars. To avoid those results, we grant the motion subject to the condition, unless otherwise ordered by the trial Court, that the order of preclusion remain in effect and operate to preclude plaintiff from giving evidence at the trial of the items of which particulars were requested in the demand for a bill of particulars, and the further condition that, if the alleged counterclaim is inserted in defendant’s answer to the amended complaint, and if a reply is required, plaintiff shall not be permitted to reply unless it moves for and is granted relief from any prior default in pleading. (Appeal from Judgment of Supreme Court, Cayuga County, Contiguglia, J.— Amended Complaint.) Present — Dillon, P. J., Boomer, Pine, Balio and Davis, JJ.  