| Colwin v Katz |
| 2011 NY Slip Op 09018 [90 AD3d 516] |
| Dcmbr 15, 2011 |
| Appellate Division, First Department |
| Mercedes Colwin, Respondent, v Bruce Katz, M.D., et al.,Appellants. |
—[*1] Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 16, 2011,which denied defendants' motion to compel plaintiff to submit a further or supplemental bill ofparticulars, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff alleges that she suffered personal injuries as aresult of defendants' performance of cosmetic surgery. In her bill of particulars, plaintiff allegesthat she sustained, among other things, lymphedema in her right leg resulting in "pain andtenderness in her right leg, knee, ankle and foot, restriction of motion . . . weakness,inability to bear weight, loss of function and the articulations, [and] aggravation of a preexistinglatent and asymptomatic degenerative condition." Defendants moved to compel a furtherresponse to their demands, seeking a specific statement as to the injury sustained, i.e., whetherthe lymphedema was caused or simply aggravated by the alleged malpractice.
"The purpose of a bill of particulars is to amplify the pleadings, limit the proof and preventsurprise at trial" (Harris v Ariel Transp.Corp., 37 AD3d 308, 309 [2007]; Twiddy v Standard Mar. Transp. Servs., 162AD2d 264, 265 [1990]). It need not set forth a matter that is evidentiary in nature, which is moreappropriately obtained through depositions and expert disclosure (see Harris, 37 AD3d at309). Not only was it permissible for plaintiff to amplify the nature of her injuries in the bill ofparticulars (see Anderson vDainack, 39 AD3d 1065, 1068 [2007]; Behan v Data Probe Intl., 213 AD2d 439,440 [1995]; cf. Barrera v City of New York, 265 AD2d 516, 518 [1999]), defendantsseek evidentiary matter not within the scope of a bill of particulars (see Harris, 37 AD3dat 309). Plaintiff's response, which includes medical records that illuminate her preexistinginjuries or condition (see Sobel v Midchester Jewish Ctr., 52 AD2d 944 [1976]), issufficient to apprise defendants of the nature of the injury (CPLR 3043 [a] [6]).Concur—Saxe, J.P., Sweeny, Acosta, DeGrasse and Abdus-Salaam, JJ.