MAISONET v. NEW YORK CITY HOUSING AUTHORITY (2000)

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about October 20, 1999, which, in an action for personal injuries arising out of a trip and fall on defendant's premises, granted defendant's motion to strike plaintiff's second and third supplemental bills of particulars, or, in the alternative, to vacate plaintiff's note of issue, only to the extent of permitting defendant to conduct a further deposition and a further medical examination of plaintiff, unanimously affirmed, without costs.

We reject defendant's claim that plaintiff's “supplemental” bills of particulars are actually “amended” bills of particulars that allege a new injury distinct from the initial ankle fracture, and that were improperly served without court leave after the note of issue had been filed (CPLR 3042 [b];  3043[b] ).   Allegedly, the second fracture to plaintiff's ankle described in the supplemental bills of particulars occurred as plaintiff, a teenager with no apparent history of ankle problems prior to the first fracture 20 months earlier, stood up from a seated position.   Given such innocuous circumstances, and documentary indications that the ankle was bothering plaintiff more than seven months after the initial injury, it appears more likely than not that the second fracture was causally related to the first (compare, Kolanovic v. Astro Crecido Cia. Nav., 59 A.D.2d 695, 398 N.Y.S.2d 689).

MEMORANDUM DECISION.