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Benjamin SCHNEIDER, Claimant, v. The STATE of New York, Defendant.
Claimant Benjamin Schneider filed the claim at issue against defendant State of New York on September 21, 2018. He seeks damages for injuries he allegedly suffered when hit by a car owned by the New York State Office of Mental Health (“OMH”) and operated by its employee on September 4, 2018, while he was walking at the intersection of East 49th Street and Clarkson Avenue in Brooklyn, New York (Claim ¶ 3).
Following discovery, claimant filed the Note of Issue on June 12, 2020, and subsequently moved for summary judgment. By Decision & Order filed January 19, 2021, I granted claimant's motion as to the State's liability, but denied it in regard to claimant's comparative negligence, which left that issue, as well as the questions of serious injury and damages, for trial. Pursuant to a Pre-Trial Order dated February 3, 2021, the trial on this claim is scheduled to commence on June 1, 2021, with expert disclosure due by May 23, and a pre-trial conference to take place on May 24. Claimant now moves — by motion returnable May 19 — for permission to amend his bill of particulars to add the following alleged injuries to the cervical spine:
“(1) The previously claimed herniation at the C6-C7 level is clarified as an aggravation and exacerbation of a prior but different disc injury at this level.
(2) To the extent that defendant is going to claim at trial that plaintiff has sustained an injury to his neck prior to the date of the accident, then plaintiff claims that the subject accident aggravated and exacerbated an asymptomatic and/or resolved neck injury, causing him to undergo the injuries and surgeries previously claimed.
(3) If defendants claim Plaintiff's conditions are age related or otherwise pre-existing, then plaintiff claims that those conditions were exacerbated, aggravated, activated, precipitated and accelerated by the occurrence herein requiring the treatment and surgeries received. Additionally, in the event that the injuries to the Plaintiff were superimposed upon any pre-existing conditions which may have contributed to the extent and severity of his injuries and rendered him more prone or susceptible to further injury, then such pre-existing conditions or susceptibility, if any, including exacerbation or aggravation of either symptomatic or asymptomatic disc disease, if existing, were aggravated, activated, precipitated, accelerated and acted upon by the injuries sustained by him in the subject occurrence” (Affirmation of Scott A. Steinberg, Esq., dated May 1, 2021 [“Steinberg Aff”], Ex F).
This is not the first time such changes to the bill of particulars have been before me. Back on February 24, claimant served a Third Supplemental Bill of Particulars, which added various injuries including the first two items in the proposed amendment, described above.1 Defendant rejected those amendments, and after submission by the parties of letters setting forth their positions, I addressed the matter in a March 25, 2021 letter order (“D & O”) in which I ruled that these amendments — introduced for the first time in a Third Supplemental Bill of Particulars — concerned “new injuries” or “new theories of liability” and, therefore, were not appropriate for disclosure in a supplemental bill, but instead required claimant to move to amend (D & O at 2). Thus, in response to my March 25 decision, claimant presents his current motion, in which he argues that such amendments have merit and the State cannot reasonably claim prejudice since no new facts are introduced and the relevant medical records are already in defendant's possession (Steinberg Aff ¶ 16).
In an affirmation from counsel, defendant opposes claimant's motion, characterizing it as an effort to introduce a new theory of liability on the eve of trial, eleven months after the filing of the note of issue (Affirmation of Giyang An, Esq., dated May 17, 2021 [“An Aff”] ¶¶ 4-5). Defendant contends that claimant has failed to present any justifiable excuse for this delay and no proof of merit, which the State claims is unduly prejudicial and hinders its ability to defend this action (id.).
Leave to amend is to be “freely given upon such terms as may be just” (CPLR § 3025[b]). Thus, an amendment to a pleading should generally be allowed where the opposing party will be neither prejudiced nor surprised and where the amendment is not “palpably insufficient or patently devoid of merit” (see Lucido v Mancuso, 49 AD3d 220, 222 [2d Dept 2008]).
Notwithstanding this deferential standard, however, when claimant's application for leave to amend a bill of particulars to add new injuries comes following “inordinate delay” or on the eve of trial, then “the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment” (Kyong Hi Wohn v County of Suffolk, 237 AD2d 412, 412-413 [2d Dept 1997]). Moreover, the showing of merit must include “a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained” (Cherry v Longo, 175 AD3d 1481, 1483 [2d Dept 2019] [internal quotation and citation omitted]).
In the motion before me, claimant has not submitted any medical affidavit demonstrating the alleged causal connection between the auto accident at issue and any aggravation or exacerbation of a prior disc injury, neck injury or other pre-existing age-related injury. Nor has claimant proffered any reasonable excuse for the delay in seeking to amend following the filing of the June 12, 2020 Notice of Issue — other than to note that claimant attempted to submit such claims in his Third Supplemental Bill of Particulars in March 2021, only to have me rule that such was improper (Steinberg Aff ¶¶ 23-24, D & O 2-5). According to claimant, the prior dispute before the Court put defendant on notice of the proposed amendments, but he does not explain why such notice was not given during the earlier nine-month period following the filing of the note of issue.
Claimant also does not assert that he was unaware of the newly alleged exacerbation of pre-existing disc, neck or age-related injuries during the treatment he received between the date of the September 2018 accident and the filing of the notice of issue on June 12, 2020. Indeed, claimant concedes that he and his treating physician were aware of the alleged exacerbation of a pre-existing disc injury, but fails to explain when the physician came to such conclusion or why it was not disclosed sooner (id. at ¶ 57). Under the present circumstances, claimant has the duty to “reasonably explain” the delay in amending to add the new claim for exacerbation of preexisting injuries (see Stewart v Dunkleman, 128 AD3d 1338, 1340 [4th Dept 2015], lv denied 26 NY3d 902  [court should deny motion to amend bill with exacerbation claims post note of issue where all the facts that might form the basis of the amended bill were or should have been known to plaintiff when original bill was served]). There is nothing in claimant's papers, however, which provides any explanation for his delay in raising this issue.
Further, I note that the third clause claimant seeks to add was not mentioned in the earlier Third Supplemental Bill of Particulars, and does not really constitute a new allegation of injury at all, but a blunderbuss reservation of the right to claim that any injury defendant points to as age-related or pre-existing was exacerbated by the accident at issue. If a claimant could preserve all possible exacerbation claims by such a device, there would be little point to the whole exercise of bills of particular and amendments thereto. But the law does not allow for such a generalized description of the injuries suffered; rather the bill of particulars must set forth the injury with specificity if there is to be testimony thereon, and recovery therefor (see Kenney v Zimmerman, 185 AD2d 690 [4th Dept 1992] [no recovery for injury when plaintiff “did not mention that specific injury in her bill of particulars”]).
Finally, claimant has not shown that defendant would not be prejudiced by the proposed amendment. Were I to grant claimant's application, defendant would have to go to trial without having had the opportunity to seek discovery that may be relevant to the new theories of injury now alleged, and to prepare a defense at trial to such (see Cruz v Sharkey's Trucking Corp., 192 AD3d 576 [1st Dept 2021] [trial court “providently exercised its discretion in denying plaintiff's motion to amend his bill of particulars on the ground of prejudice to defendants resulting from the extended delay in seeking leave to amend,” where passage of time prevented defendants from conducting meaningful IME addressing injury]; Kirk v Navon, 160 AD3d 823, 824 [2d Dept 2018] [leave to amend bill of particulars denied when “plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries”]). Thus, even if claimant's motion did not have the threshold defects set forth above, there would be ample alternative basis to deny the application
For all these reasons, claimant's motion no. M-96715 to amend his bill of particulars is denied.
1. Notice of Motion and Affirmation in Support of Scott A. Steinberg, Esq., dated May 1, 2021, with Exhibits annexed thereto.
2. Affirmation in Opposition of Giyang An, dated May 17, 2021, with Exhibits annexed thereto.
1. The language of the second added clause referred to an injury to claimant's “back” in the Third Supplemental Bill of Particulars, rather than the neck as in the present proposed amendment. Since the general heading of he amendments in the Third Supplemental Bill indicated that they concerned the cervical spine, this does not appear to be a substantive change.
David A. Weinstein, J.
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Docket No: Claim No. 132019
Decided: May 20, 2021
Court: Court of Claims of New York.
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