The appellants' objections to the plaintiffs' responses to demands number 4, 14, 18, and 19 are without merit, since none of the information sought in those demands is expressly authorized under CPLR 3043 (see Feraco v Long Is. Mahr v Perry, 2010 NY Slip Op 05369 (App. Author DMG Posted on Categories CPLR § 3126, CPLR R. Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate. Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court ( Shahid v New York City Health & Hosps. Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim ( see Gibbs v St. Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order ( see e.g. The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they sought dismissal and/or preclusion ( see CPLR 3126 see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 ). 3043 Bill of particulars in personal injury actionsĬPLR § 3126 Penalties for refusal to comply with order or to discloseĪnderson v Ariel Servs., Inc., 2012 NY Slip Op 02038 (1st Dept., 2012) This entry was posted in Damages, New York, Trial Practice by Brian Gibbons. Please email Brian Gibbons with any questions. Thanks to Dana Purcaro for her contribution to this post. This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike. The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial. On appeal the Appellate Division overturned the lower court’s decision. The lower court granted the defendant’s motion. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy.ĭefendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Hampton Bays, 2017 Slip Op 05075 (2d Dept. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them.
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