| Singh v 244 W. 39th St. Realty, Inc. |
| 2009 NY Slip Op 06826 [65 AD3d 1325] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Joginder Singh, Respondent, v 244 W. 39th Street Realty,Inc., et al., Appellants. (And Other Titles.) |
—[*1] Elliot Ifraimoff & Associates, P.C. (Julio Cesar Roman and The Breakstone Law Firm, P.C.,Bellmore, N.Y. [Jay L. T. Breakstone], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Hurkin-Torres, J.), dated November 7, 2008, which deniedtheir motion, inter alia, for leave to conduct additional discovery of the plaintiff with respect tohis claim for future medical care, surveillance videos of the plaintiff, and his claim for lostwages.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying that branch of the defendants' motion which was for leave toconduct additional discovery of the plaintiff with respect to his claim for future medical care andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed, without costs or disbursements.
To prevent substantial prejudice, the Supreme Court, in its discretion, may grant leave toconduct additional discovery after the filing of a note of issue and certificate of readiness wherethe moving party demonstrates that "unusual or unanticipated circumstances" developedsubsequent to the filing requiring additional pretrial proceedings (22 NYCRR 202.21 [d]; seeJames v New York City Tr. Auth., 294 AD2d 471, 472 [2002]; Audiovox Corp. vBenyamini, 265 AD2d 135, 140 [2000]). Here, approximately nine months after the filing ofthe note of issue, the plaintiff served a supplemental bill of particulars and an expert report withworksheets alleging that the cost of his future medical care would be approximately $8.9 million.This amount was more than three times what had been alleged earlier. Under thesecircumstances, the defendants demonstrated that "unusual or unanticipated circumstances"developed subsequent to the filing of the note of issue, justifying an additional deposition of theplaintiff regarding his claim for future medical care (cf. Karakostas v Avis Rent A Car Sys.,306 AD2d 381, 382 [2003]). Accordingly, that branch of the defendants' motion which wasfor leave to conduct additional discovery of the plaintiff with respect to his claim for futuremedical care should have been granted.
The defendants, however, failed to demonstrate that "unusual or unanticipatedcircumstances" developed subsequent to the filing of the note of issue with respect tosurveillance videos [*2]of the plaintiff or the plaintiff's claim forlost wages. The plaintiff's supplemental bill of particulars claiming lost wages was servedapproximately nine months prior to the filing of the note of issue and one year and eight monthsprior to the defendants' motion, and the plaintiff did not allege that the amount of his claim forlost wages, as opposed to his claim for future medical care, had changed dramatically (seeSchenk v Maloney, 266 AD2d 199, 200 [1999]; Frangella v Sussman, 254 AD2d391, 392 [1998]). Moreover, the defendants failed to explain why the surveillance could not havebeen conducted earlier in the discovery process (see Audiovox Corp. v Benyamini, 265AD2d at 140). Accordingly, those branches of the defendants' motion which were for leave toconduct additional discovery of the plaintiff with respect to the surveillance videos and his claimfor lost wages were properly denied. Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ.,concur.