Late Supplemental BP

CPLR R. 3043 Bill of particulars in personal injury actions

(b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.

(c) Discretion of court. Nothing contained in the foregoing shall be deemed to limit the court in denying in a proper case, any one or more of the foregoing particulars, or in a proper case, in granting other, further or different particulars.

Spiegel v Gingrich, 2010 NY Slip Op 04645 (App. Div., 1st, 2010)

The motion court, although it properly concluded that RSD was not a
"new" injury, but a sequela of plaintiff's original injury, granted the
motion to strike the supplemental bill of particulars 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 before trial without leave of court (see CPLR
3043[b]). However, the CPLR grants a motion court the discretion to
determine whether to allow a "late" supplemental bill, or an amended
bill of particulars, provided no prejudice to the defendant results.
Indeed, CPLR 3043[c], entitled "discretion of court," provides,
"[N]othing contained in the foregoing shall be deemed to limit the court
in denying in a proper case, any one or more of the foregoing
particulars, or in a proper case, in granting other, further or
different particulars." 

Defendant herein cannot
seriously contend that he was prejudiced. He argued, before the motion
court, that evidence of RSD was in the record as early as June 2007,
citing Dr. Doolan's assessment. Further, the adjournment of the trial
without a date furnished ample opportunity for defendant to conduct
discovery concerning plaintiff's allegation that she suffers from RSD.
Given the manifest lack of prejudice to defendant, together with the
adjournment of the trial without a date, it was an improvident exercise
of discretion for the motion court to grant the motion to strike
plaintiff's supplemental bill of particulars, based solely on 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 not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]). Thus,
we dismiss the appeal from this order.

All concur except Tom, J.P. and DeGrasse, J. who dissent
in part in a memorandum by DeGrasse, J. as follows:

DeGRASSE,
J. (dissenting in part)

I respectfully dissent. Plaintiff was injured when she slipped and
fell on defendant's boat. Her supplemental amended bill, served 14 days
before trial, contravened the 30-day deadline set forth in CPLR 3043(b).
She did not seek leave to serve a late supplemental bill, and offered
no reasonable 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 not appealable before a judgment after trial
is rendered (Santos v Nicolas, 65 AD3d 941 [2009]).
Accordingly, I would affirm the order entered September 28, 2009, which
granted defendant's motion to strike plaintiff's supplemental amended
bill of particulars, and dismiss the appeal from the order entered on
the same date which granted defendant's motion to preclude plaintiff's
biomedical engineer from testifying at trial as to proximate cause.

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