| Witherspoon v Surat Realty Corp. |
| 2011 NY Slip Op 02380 [82 AD3d 1087] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Peter Witherspoon, Respondent, v Surat Realty Corp. et al.,Appellants. |
—[*1]
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), datedSeptember 27, 2010, as denied those branches of their motion which were to strike the plaintiff'ssupplemental bill of particulars or to vacate the note of issue and certificate of readiness.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the defendants' motion which was tostrike the plaintiff's supplemental bill of particulars, including the particulars of the plaintiff's leftshoulder surgery. Pursuant to CPLR 3043 (b), a plaintiff may serve a supplemental bill ofparticulars containing "continuing special damages and disabilities" without leave of the court ifit alleges "no new cause of action . . . or new injury." Where, as here, the plaintiffseeks to allege continuing consequences of the injuries suffered and described in previous bills ofparticulars, rather than new and unrelated injuries, the contested bill of particulars is asupplemental bill of particulars (see Tate v Colabello, 58 NY2d 84, 87 [1983]; Maraviglia v Lokshina, 68 AD3d1066, 1067 [2009]; Shahid v NewYork City Health & Hosps. Corp., 47 AD3d 798, 800 [2008]; Zenteno v Geils, 17 AD3d 457,458 [2005]), rather than an amended or new bill of particulars. Furthermore, there was noshowing of prejudice to the defendants, as the supplemental bill of particulars was served morethan 30 days prior to trial and the Supreme Court directed the parties to conduct further pretrialproceedings (see 22 NYCRR 202.21 [d]; Maraviglia v Lokshina, 68 AD3d at1067; Fortunato v Personal Woman'sCare, P.C., 31 AD3d 370, 371 [2006]).
The Supreme Court also properly denied that branch of the defendants' motion which was tovacate the note of issue and certificate of readiness. A motion to vacate the note of issue andcertificate of readiness made more than 20 days after their service will be granted only where "amaterial fact in the certificate of readiness is incorrect" or upon "good cause shown" (22 NYCRR202.21 [e]; see Torres v Saint VincentsCatholic Med. Ctrs., 71 AD3d 873 [2010]; Ferraro v North Babylon Union Free School Dist., 69 AD3d 559,561 [2010]). The defendants failed to satisfy these requirements (see Schenk v Maloney,266 AD2d 199 [1999]; Audiovox Corp. v Benyamini, 265 AD2d 135, 139 [2000];Stella v Ahmed, 223 AD2d 698 [1996]). Dillon, J.P., Leventhal, Belen, Austin andCohen, JJ., concur.