AND FREDERICK CARTER v. The State of New York, Defendant. (2026)

Before the Court is the Defendant State of New York ("Defendant" or "State")'s motion to strike Claimants' supplemental bill of particulars.¹ As explained below, the Court will grant the motion because the supplemental bill impermissibly contains new injuries, but Claimants are still able to serve an amended bill of particulars as of right.

This Claim arises from an April 10, 2025 motor vehicle accident between Claimant Nichole M. Carter and a State employee operating a State-owned vehicle (see Frias Aff, Exhibit A, ¶¶ 3-4, 6-8). On October 3, 2025, Claimants served the State with a verified bill of particulars ("BOP") in which they identified right ankle and foot fractures, and a right ankle surgery, as some of the pertinent injuries sustained by Claimant Nichole M. Carter in the April 2025 accident (see Frias Aff, Exhibit C, ¶ 9). On April 22, 2026, Claimants served the State with a document titled "Supplemental Verified Bill of Particulars" ("Supplemental BOP") in which they allege that, on October 5, 2025, Claimant Nichole M. Carter suffered a fall at her home "when [her] right ankle gave out during ordinary ambulation on [the] front porch due to [a] weakened ankle originating from the [motor vehicle accident]" (Frias Aff, Exhibit D, ¶ 9 [emphasis omitted]). The Supplemental BOP alleges that Claimant Nichole M. Carter suffered fractures to her right humerus (upper arm) and right tibial plateau (knee area), and underwent surgeries for both injuries (see id.).

The State argues that the Court should strike the Supplemental BOP because discovery is complete, and Claimants are attempting to assert a new cause of action and injuries, which they cannot do without providing a reasonable excuse for the delay, and expert medical proof demonstrating that the October 2025 fall "was caused by the accident on April 10, 2025" (Frias Aff, ¶ 13).

Claimants oppose the State's motion, arguing that, under CPLR 3043 (b), they properly supplemented the BOP to include injuries that are continuing consequences of injuries listed in the original BOP, and they did so more than 30 days before any yet-to-be-scheduled trial (see Affirmation in Opposition to Defendant's Motion to Strike Claimants' Supplemental Verified Bill of Particulars of John L. Alexander, Esq. ["Alexander Aff"], ¶¶ 4-9). Claimants further argue that they need not prove causation at this juncture, but merely a "clinical and conceptual connection" between the accident and the later-arising injuries (Alexander Aff, ¶ 8). Claimants cite to Claimant Nichole M. Carter's medical records and her deposition transcript to argue the existence of a conceptual connection (see Alexander Aff, ¶¶ 6-7). Claimants argue in the alternative that, if the Court finds the Supplemental BOP alleges new claims or injuries, it is still proper as a "valid as-of-right amendment under CPLR 3042 (b)," as no note of issue has been filed and Defendant has not demonstrated any prejudice (Alexander Aff, ¶¶ 13-14).

With their Supplemental BOP, Claimants are not attempting to add new causes of action to the Claim. The Claim continues to be one based on the State's alleged vicarious liability for the actions and inactions of its employees related to the April 10, 2025 motor vehicle accident, and a derivative claim on behalf of Claimant Frederick Carter (see O'Keefe v State of New York, UID No. 2002-028-013, Claim No. 98412 [Ct Cl, Sise, J., Mar. 11, 2002] [finding proposed amendment to a bill of particulars did not add a new cause of action because the amendment "involve(d) the same transaction and set of facts; the gist of th(e) claim remain(ed) the improper movement of the steel sheet" (citation omitted)]; see also Scherrer v Time Equities, Inc., 27 AD3d 208, 209 [1st Dept 2006] ["supplemental bill of particulars . . ., which cited additional statutory violations, should not have been struck since it merely amplified and elaborated upon the theory already set forth in the original bill of particulars and raised no new theory of liability" (citations omitted)]; Scheffer v State of New York, 87 Misc 3d 1232[A], 2025 NY Slip Op 51759[U], *6 [Ct Cl 2025] [the bill of particulars and supplemental bill of particulars did not contain "impermissible new theories of liability" where the "allegations reflect permissible amplifications of the claims originally asserted, and are consistent with the procedural framework established under CPLR 3042 and 3043"]).

The later fall and surgeries asserted in the Supplemental BOP are additional injuries which Claimants allege were caused by the original motor vehicle accident on April 10, 2025; there is no new or separate conduct alleged on the part of the State or any new theory of negligence on the part of the State that Claimants allege caused these later-arising injuries. The Supplemental BOP "merely exposes defendant[ ] to greater liability; it does not advance a new legal theory" (Kassis v Teachers' Ins. & Annuity Assn., 298 AD2d 223, 223 [1st Dept 2002] [citation omitted]).

That said, the injuries in the Supplemental BOP are new injuries and the proper mechanism to include these injuries in a bill of particulars is to do so by amendment, not supplement (see CPLR 3043 [b] ["no new cause of action may be alleged or new injury claimed" in a supplemental bill of particulars]; Schreiber v University of Rochester Med. Ctr., 74 AD3d 1812, 1812 [4th Dept 2010]; Fuentes v City of New York, 3 AD3d 549, 550 [2d Dept 2004]; see also Daly-Caffrey v Licausi, 70 AD3d 884, 885 [2d Dept 2010]; cf. CPLR 3042 [b]). The Court does not accept Claimants' argument that the October 5, 2025 injuries to Nichole M. Carter's arm and knee are continuing injuries, or the natural sequelae of the ankle injuries occurring on April 10, 2025. The October 5, 2025 injuries resulted from a separate fall and affected completely separate body parts than those allegedly injured in the April 10, 2025 accident (see Licht v Trans Care NY, 3 AD3d 325, 326 [1st Dept 2004] ["plaintiffs' self-labeled 'supplemental' bill of particulars amended, rather than supplemented, their prior bills of particulars alleging an injury to the heart by adding a new injury to the brain not previously claimed or even suggested" (citation omitted)]).

Naftaliyev v GGP Staten Is. Mall, LLC (204 AD3d 932 [2d Dept 2022]) is instructive. In that case, the plaintiff suffered injuries to her right arm and wrist when she slipped and fell on the defendant's property (see id. at 932-933). Approximately six months later, the plaintiff fell down a set of stairs and fractured her left ankle (see id. at 933). She attempted to serve defendant with a supplemental bill of particulars, and argued that the ankle injuries were continuing consequences of the earlier arm and wrist injuries because the arm and wrist injuries prevented her from properly gripping the staircase railing (see id.). The Second Department found that the trial court erred by not striking the "supplemental" bill of particulars because "[c]ontrary to the plaintiffs' contention, the document that they denominated a 'supplemental bill of particulars' . . . was, in reality, an amended bill of particulars, as they sought to add new injuries" (id at 933 [citations omitted]; cf. Maisonet v New York City Hous. Auth., 276 AD2d 260, 260 [1st Dept 2000]).

Like the Second Department in Naftaliyev, this Court concludes that, in their self-labeled supplemental bill of particulars, Claimants are alleging new injuries to the arm and knee that were caused by a later fall. Although Claimants ultimately may be able to prove at trial that there is a causal connection between the original accident and the October 5, 2025 accident and injuries, there is no indication from the Claim or original BOP that these new injuries are a mere amplification of injuries previously pleaded, or that these new allegations elaborate on the extent of an already-pleaded injury (see Frias Aff, Exhibits A and C; see e.g. Scherrer, 27 AD3d at 209). To the contrary, these are newly-interposed injuries "not previously claimed" (Licht, 3 AD3d at 326; see Ahamed v 94-11 59th Ave. Corp., 266 AD2d 486, 486 [2d Dept 1999]). Because the Supplemental BOP improperly attempts to assert new injuries, the Court will grant the State's motion to strike the Supplemental BOP.

That said, Claimants have the right to assert these new injuries at this stage in the case through an amended bill of particulars pursuant to CPLR 3042 (b) (see Martinovics v New York City Health and Hosps. Corp., 285 AD2d 532, 535 [2d Dept 2001]). A bill of particulars may be amended once as of right at any time up to the filing of the note of issue (see CPLR 3042 [b]; Mackauer v Parikh, 148 AD3d 873, 877 [2d Dept 2017]). No note of issue has been filed in this Claim, there is no trial scheduled, and Claimants have not previously amended their bill of particulars. Contrary to Defendant's arguments (see Frias Aff, ¶¶ 12, 14, 15), Claimants may amend their bill of particulars, and need not provide an excuse for any delay, or medical expert proof, because no note of issue has been filed (see Mackauer, 148 AD3d at 877 ["no such showing is required where a bill of particulars is amended as of right before the note of issue and certificate of readiness have been filed"]).

In addition, Claimants have represented that they are prepared to engage in additional discovery related to the October 5, 2025 fall and subsequent surgeries (see Alexander Aff, ¶ 12 and Exhibit 5). Claimants will ultimately need to prove causation at trial, but causation need not yet be established for purposes of amending a bill of particulars for the first time before the note of issue has been filed, or a trial scheduled.

Accordingly, it is hereby

ORDERED, that Defendant's motion M-103953 to strike Claimants' Supplemental Verified Bill of Particulars is GRANTED and the Supplemental BOP is stricken; and it is further

ORDERED, that Claimants shall serve an amended bill of particulars on Defendant within ten (10) days of the filing of this Decision and Order; and it is further

ORDERED, that the deadline for the completion of discovery and filing of the note of issue and certificate of readiness shall be extended to sixty (60) days after Claimants serve Defendant with their amended bill of particulars.

July 13, 2026

Syracuse, New York

ABBY R. PERER

Judge of the Court of Claims

Papers Considered:

Notice of Motion Opposing Cliamant's [sic] Amended Bill of Particulars, dated May 12, 2026.

Affirmation in Support of Motion Opposing Cliamant's [sic] Amended Bill of Particulars of Janelle N. Frias, Esq., dated May 12, 2026, with attached Exhibits A through D.

Affirmation in Opposition to Defendant's Motion to Strike Claimants' Supplemental Verified Bill of Particulars of John L. Alexander, Esq., dated June 1, 2026, with attached Exhibits 1 through 6.

FOOTNOTES

1.   The State labels its motion as a "Motion Opposing Cliamant's [sic] Amended Bill of Particulars," and requests that the Court "deny the Claimant's Supplemental Verified Bill of Particulars" (Affirmation in Support of Motion Opposing Cliamant's [sic] Amended Bill of Particulars of Janelle N. Frias, Esq. ["Frias Aff"], ¶ 6). The Court will treat the motion as a motion to strike the Supplemental Verified Bill of Particulars, which is the proper nomenclature for the relief sought by the State.

Abby R. Perer, J.