CPLR R. 3043

3043. 3126: pot meet kettle

CPLR R. 3043 Bill of particulars in personal injury actions

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Anderson v Ariel Servs., Inc., 2012 NY Slip Op 02038 (1st Dept., 2012)

The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]). Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court (Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800 [*2][2008]; see CPLR 3043[b]). Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate.

BP CPLR R. 3043 (use it right)

CPLR R. 3043 Bill of particulars in personal injury actions

Mahr v Perry, 2010 NY Slip Op 05369 (App. Div., 2nd, 2010)

The appellants' objections to the plaintiffs' responses to demands number 4, 14, 18, and 19 are without merit, since none of the information sought in those demands is expressly authorized under CPLR 3043 (see Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498; Williams v Shapiro, 67 AD2d 706; Johnson v Charow, 63 AD2d 668).

The appellants' objections to the plaintiffs' responses to demands number 3, 8, and 10 are also without merit. The plaintiffs properly objected to each of these demands, as they improperly sought evidentiary material (see Toth v Bloshinsky, 39 AD3d 848, 849; Benn v O'Daly, 202 AD2d at 465). Demand 8 also was improper on the ground that it sought to compel the plaintiffs to "set forth the manner in which the physician failed to act in accordance with good and accepted medical practice," which is knowledge "a physician is chargeable with knowing" (Toth v Bloshinsky, 39 AD3d at 849; see Dellaglio v Paul, 250 AD2d 806).

The bold is mine.

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.