| Salgado v Town Sports Intl. |
| 2010 NY Slip Op 04172 [73 AD3d 898] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Francisco Salgado et al., Appellants, v Town SportsInternational, Doing Business as New York Sports Club, et al.,Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from (1) so much of an order of the Supreme Court, Westchester County (Liebowitz,J.), entered March 17, 2009, as granted the defendants' motion to strike their "first supplementaland amended" bill of particulars dated August 15, 2008, and "further supplemental" bill ofparticulars dated August 29, 2008, and denied those branches of their cross motion which wereto compel the defendants to comply with two notices to produce, and (2) so much of an order ofthe same court entered September 3, 2009, as, upon renewal and reargument, adhered to theoriginal determination in the order entered March 17, 2009, and denied those branches of theirmotion which were for sanctions pursuant to CPLR 3126, to strike the answer based on thespoliation of evidence, and for leave to serve an amended complaint and an "amended andsupplemental" bill of particulars.
Ordered that the appeal from the order entered March 17, 2009, is dismissed, as that orderwas superseded by the order entered September 3, 2009, made upon renewal and reargument;and it is further,
Ordered that the order entered September 3, 2009, is affirmed insofar as appealed from; andit is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court properly granted the defendants' motion to strike the plaintiffs' "firstsupplemental and amended" bill of particulars dated August 15, 2008, and "furthersupplemental" bill of particulars dated August 29, 2008, because they were served without leaveof the court after the note of issue had been filed and thus were nullities (see CPLR 3042[b]; Romanello v Jason, 303 AD2d 670 [2003]; Bartkus v New York MethodistHosp., 294 AD2d 455 [2002]). The court properly denied that branch of the [*2]plaintiffs' cross motion which was to compel the defendants tocomply with notices to produce served after the note of issue was filed, because the plaintiffsfailed to show "unusual or unanticipated circumstances" and substantial prejudice (see22 NYCRR 202.21 [d]; Newell vHirsch, 65 AD3d 1108, 1109 [2009]). Contrary to the plaintiffs' contention, the parties'stipulation did not entitle them to serve an amended bill of particulars and reopen discoverywithout limitation. The Supreme Court, upon granting that branch of the plaintiffs' motion whichwas for leave to renew and reargue the order entered March 17, 2009, properly adhered to itsoriginal determination.
Under the circumstances of this case, the Supreme Court properly denied that branch of theplaintiffs' motion which was for leave to serve an "amended and supplemental" bill ofparticulars, especially since the proposed bill exceeded what could have properly been includedin the original bill of particulars (see CPLR 3042 [b]; Jones v LeFrance Leasing Ltd. Partnership, 61 AD3d 824, 825[2009]; Castleton v Broadway MallProps., Inc., 41 AD3d 410, 411 [2007]; Geller v Port Jefferson Obstetrics &Gynecology, 294 AD2d 537 [2002]; cf. Reitman v St. Francis Hosp., 2 AD3d 429 [2003]). TheSupreme Court also providently exercised its discretion in denying leave to serve the proposedamended and supplemental bill of particulars, as well as an amended complaint dated March 16,2009, because the plaintiffs failed, inter alia, to show a reasonable excuse for their extendeddelay in moving for leave (see SurgicalDesign Corp. v Correa, 31 AD3d 744, 745 [2006]; Krioutchkova v Gaad Realty Corp., 28 AD3d 427, 428 [2006];Romanello v Jason, 303 AD2d 670 [2003]).
The plaintiffs' remaining contentions are without merit. Covello, J.P., Santucci, Angiolilloand Dickerson, JJ., concur.