| Daly-Caffrey v Licausi |
| 2010 NY Slip Op 01451 [70 AD3d 884] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Linda Daly-Caffrey, Respondent, v Alfred Licausi,Appellant. |
—[*1] Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Ben Bartolotta of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Cozzens, J.), dated February 17, 2009, which denied hismotion to dismiss the complaint on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d), and granted the plaintiff's cross motionfor leave to amend the bill of particulars.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofgranting the plaintiff's cross motion for leave to amend the bill of particulars and substitutingtherefor a provision denying the cross motion; as so modified, the order is affirmed, withoutcosts or disbursements.
"Motions to amend or supplement a bill of particulars are governed by the same standards asthose applying to motions to amend pleadings" (Koch v St. Francis Hosp., 112 AD2d142, 143 [1985]; see Carranza v Brooklyn Union Gas Co., 233 AD2d 287 [1996]). Aplaintiff seeking leave to amend a bill of particulars by asserting a new injury must show areason for the delay in asserting the injury and include a medical affidavit showing a causalconnection between the alleged injury and the original injuries sustained (see Kyong HiWohn v County of Suffolk, 237 AD2d 412 [1997]; Simino v St. Mary's Hosp. ofBrooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 AD2d 800 [1985]). In this case,the plaintiff sought to add a new injury to the bill of particulars which had not been mentionedpreviously, and which did not appear in the medical records until nearly a year after the date ofthe accident. Under these circumstances, it was an improvident exercise of discretion to grant theplaintiff leave to amend her bill of particulars (see Kraycar v Monahan, 49 AD3d 507 [2008]).
The defendant failed to make a prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) (see McMillian v Naparano, 61 AD3d943 [2009]; Lunja v Mocha LimoCar Serv., 50 AD3d 971 [2008]; Dettori v Molzon, 306 AD2d 308 [2003]).Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whetherthe [*2]plaintiff's opposition papers were sufficient to raise atriable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]). Rivera, J.P., Covello, Angiolillo, Leventhal and Roman, JJ., concur.