| Schreiber-Cross v State of New York |
| 2008 NY Slip Op 10152 [57 AD3d 881] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Stacy D. Schreiber-Cross, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek, Patrick J.Walsh, and Richard Dearing of counsel), for respondent.
In a claim to recover damages for personal injuries and wrongful death, the claimant appeals from(1) a decision of the Court of Claims (Lack, J.), dated December 27, 2006, and (2) a judgment of thesame court dated January 26, 2007, which, upon the decision, made after a nonjury trial on the issue ofliability, is in favor of the defendant and against the claimant, dismissing the claim.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (seeSchicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
On February 20, 2002 the plaintiff's decedent was killed in a two-car accident at the intersection ofRoute 25A and Columbia Street in Port Jefferson Station. A notice of intention to file a claim againstthe State of New York was served on April 11, 2002. Thereafter a timely claim was filed, assertingseven allegations of negligence against the State. Six of these allegations asserted negligence pertainingto the design and/or maintenance of the traffic control device located at the intersection, or theintersection itself. The claim also alleged that the guardrail [*2]at theaccident site was located at an insufficient distance so as to constitute a danger to vehicles which forany reason left the roadway. The bill of particulars mirrored the claim and, with respect to the guardrailallegation, merely reiterated the contention that the guardrail was a danger due to its proximity to theroadway.
After the deadline to make motions for summary judgment had passed, by order dated May 24,2005, the Court of Clains allowed the parties to conduct expert disclosure (wherein the claimantdesignated its expert, to wit, Daniel Burdett), and adjourned the trial date (previously scheduled forMay 24, 2005) to August 30, 2005.
Subsequently, the claimant changed attorneys. Less than two weeks prior to the scheduled date fortrial, the claimant's new counsel submitted a motion for partial summary judgment and (more pertinentto the instant appeal) leave to amend the bill of particulars and change the designation of the claimant'sexpert. The motion was returned to the claimant's counsel with an indication that it was in violation ofthe court-imposed deadlines and established procedures of the Court of Claims. The claimantcommenced a proceeding pursuant to CPLR article 78 to compel consideration of the motion. TheCourt of Claims rendered that proceeding academic on August 31, 2005, by denying the motion intoto. Rather than proceed to trial, the claimant then moved, inter alia, for recusal of the Court of Claimsjudge assigned to hear the case. This Court affirmed the order denying that branch of the motion whichwas for recusal (see Schreiber-Cross v Stateof New York, 31 AD3d 425 [2006]).
The trial commenced on April 27, 2006 and was confined solely to the issue of the allegeddefective traffic control device. At the conclusion of the trial the claim was dismissed. The claimantappeals, asserting three bases for the appeal, to wit, that (1) the record established that the trafficcontrol device was the proximate cause of the accident, (2) the Court of Claims erred in denying thosebranches of the motion which were for leave to amend the bill of particulars and to substitute itsdesignated expert, and (3) the Court of Claims erred in denying the motion to recuse. This last item wassubsequently withdrawn via the claimant's reply brief.
The Court of Claims' determination that the claimant failed to establish that the State was negligentin maintaining the traffic signal was supported by the evidence (see Picarazzi v State of New York,95 AD2d 958 [1983]). Moreover, even if we were to agree with the claimant that the Court ofClaims erred in denying those branches of the motion which were for leave to amend the bill ofparticulars and substitute experts, it would not compel a different result on the traffic light claims. Theproposed "new expert" indicated, via his report attached to the motion in question, that the primaryfocus of his testimony would deal with his conclusion that the decedent's head trauma was caused bythe defects in the guardrail design and placement. The report of the new expert made only sparsereferences to the traffic light signal synchronization issue, which was, in any event, more than adequatelycovered by the expert who testified at trial.
Obviously, the claimant's change of counsel was also related to a radical switch in emphasis on thetheory of the State's potential liability. The claimant's first set of attorneys and experts primarily assertedthat the decedent's injuries and death were caused by a faulty traffic control device resulting in theintersection collision. The second set of attorneys and experts primarily asserted a theory that thedecedent died of head trauma and a ruptured spleen caused by the negligent placement of the guardrail.The Court of Claims was well within its [*3]discretion to prevent thiseve-of-trial, radical reversal in theories of liability, and its determination should be affirmed.
"While leave to amend a bill of particulars is ordinarily freely given (see CPLR 3025 [b];Cohen v Ho, 38 AD3d 705[2007]), where a motion for leave to amend a bill of particulars alleging new theories of liability notraised in the [claim] or the original bill is made on the eve of trial, leave of court is required, and judicialdiscretion should be exercised sparingly, and should be discreet, circumspect, prudent, and cautious(see Cohen v Ho, 38 AD3d at 705-706; Lissak v Cerabona, 10 AD3d at 309-310;Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846 [2003]; Kassisv Teachers Ins. & Annuity Assn., 258 AD2d 271 [1999]; Volpe v Good Samaritan Hosp.,213 AD2d 398, 398-399 [1995]). Moreover, where there has been an unreasonable delay inseeking leave to amend, the [claimant] must establish a reasonable excuse for the delay, and submit anaffidavit establishing the merits of the proposed amendment with respect to the new theories of liability(see Arguinzoni v Parkway Hosp., 14AD3d 633 [2005]; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Highway Div., 309AD2d at 846). 'In exercising its discretion, the court should consider how long the party seeking theamendment was aware of the facts upon which the motion was predicated, whether a reasonableexcuse for the delay was offered, and whether prejudice resulted therefrom' (Cohen v Ho, 38AD3d at 706)" (Navarette v Alexiades,50 AD3d 869, 870-871 [2008]). Moreover, once discovery has been completed and thecase has been certified as ready for trial, the party will not be permitted to amend the bill of particulars"except upon a showing of special and extraordinary circumstances" (McLeod v Duffy, 53AD2d 1011, 1012 [1976]; see also Reynolds v Towne Corp., 132 AD2d 952 [1987] [motionto amend bill of particulars to inject new theory was properly denied, where no showing ofextraordinary circumstances justified failure to seek amendment until eve of trial]).
Here, the determination of the Court of Claims was in accord with its established procedure. Thereis no indication that the denial of a motion for failure to abide by the previously court-determinedschedule could fairly be considered an improvident exercise of its discretion (see Thompson vConnor, 178 AD2d 752 [1991]). Courts have an inherent power to control their calendars(see Zeitlin v Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau & Falkin,262 AD2d 406 [1999]). In this case, the Court of Claims was in the best position to determinewhether the relief sought was contrary to prior representations made by the claimant's prior counsel andto balance the rights of the litigants against the demands of its calendar. This Court has been loathe tointerfere with such an exercise of discretion (see Matter of Rattner v Planning Commn. of Vil. ofPleasantville 156 AD2d 521 [1989]; Travelers Ins. Co. v New York Yankees, 102AD2d 851 [1984]). The change of attorneys on the eve of trial is not, standing alone, a sufficientlyexceptional circumstance requiring a limitation on such discretion (cf., Shumalski v GovernmentEmpls. Ins. Co., 80 AD2d 975 [1981]).
Substantively, the branches of the motion at issue are without merit. A proposed amendment whichis palpably insufficient or patently devoid of merit should not be permitted (see Morris v Queens Long Is. Med. Group,P.C., 49 AD3d 827 [2008]). A close examination of the moving papers shows that theproposed expert's report was devoid of any principles of physics or engineering establishingdeficiencies in the guardrail placement for the purposes that guardrails are intended. The Court ofClaims properly rejected the expert's conclusion that contact with a light pole rather than the guardrailwas more likely to lead to head trauma or spleen rupture. Moreover, the expert's report asserts,without any supporting documentation, that the sole purpose of the guardrail system was primarily toprotect cars (and passengers therein) involved in intersection [*4]collisions. That ignores the most obvious purpose of a guardrail, to wit, toprevent cars from leaving the vicinity of an impact and to protect persons and property abutting the site.Photographs of the intersection in question clearly show the proximity of numerous buildings all withinthe penumbra of potential protection afforded by the guardrails. Moreover, given the radical switch intheories two years after the accident, the motion does not even attempt to suggest that no prejudicewould be occasioned by the request at issue. Thus, that branch of the claimant's motion which was forleave to amend the bill of particulars, even if considered on the merits, could not have been properlygranted. In light of this, determination of the issue of whether that branch of the claimant's motion whichwas to substitute its designated expert should have been granted has been rendered academic.
Our decision in the case of Saldivar v I.J.White Corp. (46 AD3d 660 [2007]), does not compel a different result. Accordingly, thejudgment in question should be affirmed. Lifson, J.P., Florio, Carni and Belen, JJ., concur.