| Spiegel v Gingrich |
| 2010 NY Slip Op 04645 [74 AD3d 425] |
| June 1, 2010 |
| Appellate Division, First Department |
| Bobbi Spiegel, Appellant, v Kevin Gingrich,Respondent. |
—[*1] O'Hare Parnagian LLP, New York (Richard A. Menchini of counsel), forrespondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered September 28, 2009,which granted defendant's motion to strike plaintiff's supplemental amended bill of particulars,reversed, as an exercise of discretion, without costs. Appeal from order, same court, Justice anddate of entry, which granted defendant's motion to preclude plaintiff's biomedical engineer fromtestifying at trial as to proximate cause, unanimously dismissed, without costs.
The motion court improvidently exercised its discretion in granting defendant's motion tostrike plaintiff's supplemental bill of particulars (see Tate v Colabello, 58 NY2d 84[1983]; see also Pauling v Glickman, 232 AD2d 465 [1996]; Cardone v UniversityHosp., 78 AD2d 645 [1980], lv dismissed 52 NY2d 704 [1981]). "It is well settledthat leave to amend or supplement pleadings should be freely granted . . . unlessprejudice and surprise directly result from the delay in seeking the amendment" (Adams vJamaica Hosp., 258 AD2d 604, 605 [1999]).
Here, there can be no legitimate claim of prejudice or surprise. In a progress note dated June12, 2007, plaintiff's treating podiatrist, Dr. Doolan, assessed plaintiff with "chronic regional painsyndrome, RSD," i.e., reflex sympathetic dystrophy. Plaintiff's bill of particulars clearly apprisedthat she had sustained, inter alia, a proximal intra-articular fracture of the right first toe requiringsurgery. The bill of particulars further advised that plaintiff had restricted range of motion of theright toe and right foot, and swelling and derangement of the right great toe.
The motion court, although it properly concluded that RSD was not a "new" injury, but asequela of plaintiff's original injury, granted the motion to strike the supplemental bill ofparticulars because it was served 12 days before trial was scheduled to commence. This alleged"delay" resulted in the adjournment of the trial without date.
The CPLR contemplates that supplemental bills of particulars may be served 30 days beforetrial without leave of court (see CPLR 3043 [b]). However, the CPLR grants a motioncourt the discretion to determine whether to allow a "late" supplemental bill, or an amended billof particulars, provided no prejudice to the defendant results. Indeed, CPLR 3043 (c), entitled"[d]iscretion of court," provides, "Nothing contained in the foregoing shall be deemed to limitthe court in denying in a proper case, any one or more of the foregoing particulars, or in a propercase, in granting other, further or different particulars."[*2]
Defendant herein cannot seriously contend that he wasprejudiced. He argued, before the motion court, that evidence of RSD was in the record as earlyas June 2007, citing Dr. Doolan's assessment. Further, the adjournment of the trial without a datefurnished ample opportunity for defendant to conduct discovery concerning plaintiff's allegationthat she suffers from RSD. Given the manifest lack of prejudice to defendant, together with theadjournment of the trial without a date, it was an improvident exercise of discretion for themotion court to grant the motion to strike plaintiff's supplemental bill of particulars, based solelyon the fact that the supplemental bill was served 12 days before the scheduled trial date.
The pretrial order limiting the scope of plaintiff's expert's expected trial testimony is notappealable before a judgment after trial is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Thus, we dismiss theappeal from this order. Concur—Moskowitz, Renwick and Manzanet-Daniels, JJ.
Tom, J.P., and DeGrasse, J., dissent in part in a memorandum by DeGrasse, J., as follows: Irespectfully dissent. Plaintiff was injured when she slipped and fell on defendant's boat. Hersupplemental amended bill, served 14 days before trial, contravened the 30-day deadline setforth in CPLR 3043 (b). She did not seek leave to serve a late supplemental bill, and offered noreasonable excuse for her delay (see Torres v Educational Alliance, 300 AD2d 469,470-471 [2002]).
The pretrial order limiting the scope of plaintiff's expert's expected trial testimony is notappealable before a judgment after trial is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Accordingly, I wouldaffirm the order entered September 28, 2009, which granted defendant's motion to strikeplaintiff's supplemental amended bill of particulars, and dismiss the appeal from the orderentered on the same date which granted defendant's motion to preclude plaintiff's biomedicalengineer from testifying at trial as to proximate cause.