dissents and votes to reverse the judgment, insofar as appealed from, and grant a new trial, with the following memorandum in which O’Connor, J. concurs: While the majority would seem to agree that the trial court may have erred in concluding that the OSHA standards had no bearing upon this case (see, Brennan v Occupational Safety & Health Review Commn., 513 F2d 1032; contra, Barrera v Du Pont De Nemours & Co., 653 F2d 915, reh denied 661 F2d 931), they would nonetheless uphold the ruling of the trial court on the ground that plaintiff had failed to allege a violation of such standards in his bill of particulars. It is my opinion, however, that the trial court’s refusal to permit amendment of the plaintiff’s bill of particulars and to admit the testimony of the plaintiff’s expert relating to OSHA standards justifies a new trial.
It cannot be gainsaid but that leave to amend pleadings should be freely granted where the proposed amendment is meritorious and there is no showing of prejudice to the opponent (CPLR 3025 [b], [c]; Fahey v County of Ontario, 44 NY2d 934). The same is true with regard to amendment of bills of particulars (see, Simino v St. Mary’s Hosp., 107 AD2d 800). The issue is one addressed to the discretion of the court. In essence, Special Term denied the plaintiff’s motion to amend his bill of particulars to allege an OSHA violation on the ground that the proposed amendment was without merit. To the contrary, however, as heretofore indicated, the plaintiff’s argument that the alleged violation of the OSHA standards constituted some evidence of negligence was meritorious (see, Brennan v Occupational Safety & Health Review Commn., supra). Under the circumstances, Special Term should have granted the motion to amend (see, Herrick v Second Cuthouse, 64 NY2d 692), particularly since the defendant would have not suffered any prejudice as a result of such amendment.
The OSHA standards are admittedly virtually identical to those standards promulgated by ANSI, which were referred to in the plaintiff’s bill of particulars and with respect to which expert testimony was admitted at trial. Therefore, in terms of preparation of a defense, violation of the same standard of care would be equally applicable to either set of standards. While the OSHA standards are, as noted by the majority, cloaked with the imprimatur of the Federal government and thus may conceivably be accorded greater weight by the jury, that factor does not constitute the type of prejudice which would warrant denial of the motion to amend the bill of particulars.
*689Moreover, I cannot conclude that the exclusion of the testimony as to the OSHA standards was harmless to the plaintiffs case. It is true that the plaintiff was permitted to place before the jury evidence that the defendant violated the nearly identical ANSI promulgations and that the court instructed the jury that they could consider such violation as some evidence of negligence. However, the plaintiff was entitled to have the jury consider that the conduct may have also violated the regulations of a Federal agency and to consider that violation as additional evidence of negligence. It is precisely because that additional evidence carries the imprimatur of the Federal government that I do not consider it to be merely cumulative in this case. Moreover, the prejudice to the plaintiff was compounded by the fact that the jury was first permitted to hear the evidence regarding the OSHA standards and then instructed to disregard it, thus possibly misleading them as to whether the defendant’s conduct was a violation of the OSHA standards.
Accordingly, while I concur with the majority’s conclusion that the trial court correctly admitted a part of the plaintiff’s hospital chart into evidence, I am not prepared to say that the exclusion of the testimony relating to the OSHA standards had no substantial effect upon the result of the trial (cf. Walker v State of New York, 111 AD2d 164).