| Erickson v Cross Ready Mix, Inc. |
| 2012 NY Slip Op 06062 [98 AD3d 717] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Richard J. Erickson, Appellant, v Cross Ready Mix, Inc., etal., Respondents, and Turner Construction Company, Defendant/Third-PartyPlaintiff-Respondent. Commodore Construction Corp., Third-PartyDefendant-Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for defendant-respondentCross Ready Mix, Inc. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Brian T.Schwartz of counsel), for defendants-respondents Elite Ready Mix Corporation and "John Doe,"an agent, servant, and/or employee of Elite Ready Mix Corporation. Malapero & Prisco, LLP, New York, N.Y. (Frank J. Lombardo of counsel), for defendantthird-party plaintiff-respondent. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Feinman, J.), entered September 20, 2010, which denied hismotion for leave to serve an amended bill of particulars.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, the plaintiff's "Amended ResponseTo Defendant's Demand For A Verified Bill Of Particulars" dated May 12, 2010, is deemed asupplemental bill of particulars, and the plaintiff's motion is denied as unnecessary.
The plaintiff allegedly was injured on a construction site when he was struck by a swingingchute on the back of a cement truck. In his initial response to a demand for a bill of particulars,the plaintiff claimed that his medical treatment would include "lumbar spinal fusion surgery." OnMay 12, 2010, after the surgery was performed, the plaintiff moved for leave to amend his bill ofparticulars to include, among other things, further injuries which he allegedly sustained duringthe surgery. The allegations were contained in a document attached to the motion, entitled"Amended Response To Defendant's Demand For A Verified Bill Of Particulars," also datedMay [*2]12, 2010. In the order appealed from, the Supreme Courtdenied the motion, finding that the doctrine of law of the case precluded reconsideration of theissue, since a court of coordinate jurisdiction had already denied the relief requested in themotion in a previous order dated September 22, 2008.
"The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that,when an issue is once judicially determined, that should be the end of the matter as far as Judgesand courts of co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 NY2d162, 165 [1975]). The doctrine "applies only to legal determinations that were necessarilyresolved on the merits in [a] prior decision" (Baldasano v Bank of N.Y., 199 AD2d 184,185 [1993]; see Gay v Farella, 5AD3d 540, 541 [2004]; Gilligan v Reers, 255 AD2d 486, 487 [1998]), "and to thesame questions presented in the same case" (RPG Consulting, Inc. v Zormati, 82 AD3d 739, 740 [2011], citingPeople v Evans, 94 NY2d 499, 502 [2000]).
Here, in the previous order dated September 22, 2008, the Supreme Court denied that branchof the plaintiff's motion which was to compel acceptance of a paragraph in his supplemental billof particulars that alleged the surgical injuries. The Supreme Court denied that branch of themotion on the sole ground that the bill of particulars was improperly denominated as asupplemental bill of particulars, rather than an amended bill of particulars, insofar as thatparagraph was concerned. The Supreme Court, however, did not decide the issue of whetherleave to amend the bill of particulars should be granted. Accordingly, the doctrine of law of thecase did not prevent the Supreme Court from deciding whether the plaintiff should be permittedto amend the bill of particulars, although it did prevent that court from treating the "AmendedResponse To Defendant's Demand For A Verified Bill Of Particulars," as a supplemental bill ofparticulars. In any event, this Court is not bound by the doctrine of law of the case, and maymake its own determination as to the true nature of the document (see Mosher-Simons vCounty of Allegany, 99 NY2d 214, 218 [2002]; Martin v City of Cohoes, 37 NY2d162 [1975]; Romagnolo vPandolfini, 75 AD3d 632, 634 [2010]; Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293,1295 [2009]).
Pursuant to CPLR 3043 (b), a plaintiff in a personal injury action may serve a supplementalbill of particulars containing "continuing special damages and disabilities," without leave of thecourt, if it alleges "no new cause of action . . . or new injury." Where, as here, theplaintiff seeks to allege continuing consequences of the injuries suffered and described inprevious bills of particulars, rather than new and unrelated injuries, the contested bill ofparticulars is a supplemental bill of particulars (see Tate v Colabello, 58 NY2d 84, 87[1983]; Witherspoon v Surat RealtyCorp., 82 AD3d 1087 [2011]; Maraviglia v Lokshina, 68 AD3d 1066, 1067 [2009]; Shahid v New York City Health & Hosps.Corp., 47 AD3d 798, 800 [2008]; Zenteno v Geils, 17 AD3d 457, 458 [2005]), rather than anamended bill of particulars. Since the document entitled "Amended Response To Defendant'sDemand For A Verified Bill Of Particulars," which we deem to be a supplemental bill ofparticulars, was served more than 30 days prior to trial, leave of court was not required(see CPLR 3043 [b]). Accordingly, the plaintiff's motion must be denied as unnecessary.Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.