WILKINSON v. Aviations Safeguards, etc., Defendant-Respondent. (2003)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 13, 2002, which, in an action for assault, denied plaintiff's motion to supplement his responses to interrogatories so as to claim aggravation of an ulcer in addition to aggravation of a brain condition and post-traumatic stress disorder, unanimously affirmed, without costs.

Plaintiff's request for leave to allege aggravation of an ulcer, made some 19 months after the filing of the note of issue and almost seven years after the alleged assault, was properly denied in the absence of an explanation for the failure earlier to allege the ulcer.   This is particularly the case here where the ulcer was treated as far back as 12 years prior to the alleged assault, and was mentioned, but not claimed as an injury, in plaintiff's physician's previous reports and deposition (see Bertan v. Richmond Mem. Hosp. & Health Ctr., 106 A.D.2d 362, 482 N.Y.S.2d 492).