SAMUELSEN v. Classic Carpet Showroom, Inc., Defendant. (2021)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 8, 2021, which, upon defendants Wollman Rink Operations, LLC and The Trump Organization, Inc.’s motion to vacate the note of issue and preclude plaintiff from offering evidence of newly disclosed injuries at trial, or, in the alternative, compel further discovery from plaintiff related to newly disclosed injuries, granted defendants one additional independent medical examination (IME), and granted plaintiff's cross motion for leave to file an amended bill of particulars, unanimously modified, on the facts, to direct plaintiff to submit to additional IMEs with respect to her Alzheimer's disease diagnosis and a further examination before trial (EBT) limited to risk factors for Alzheimer's disease, and otherwise affirmed, without costs.

Although plaintiff's motion to amend her bill of particulars was made a year after she filed the note of issue, she did not seek to assert a new theory of liability.  Rather, she expanded upon the traumatic brain injury and related cognitive and memory deficits alleged in her original bills of particulars (see Reed v. City of New York, 304 A.D.2d 1, 8–9, 757 N.Y.S.2d 244 [1st Dept. 2003], lv denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003]).  Moreover, plaintiff's explanation for her delay in claiming Alzheimer's disease, that her experts did not categorize her memory and cognitive deficits as Alzheimer's disease until after the note of issue had been filed, was sufficient.  Any prejudice to defendants from the late amendment is properly mitigated by additional discovery (see Torres v. New York City Tr. Auth., 78 A.D.3d 419, 913 N.Y.S.2d 653 [1st Dept. 2010]).

The motion court properly declined to vacate the note of issue, since, at the time the certificate of readiness was filed, it did not contain a material misrepresentation or error (see 22 NYCRR 202.21[e]).  The court also properly declined to preclude plaintiff's newly disclosed experts from testifying at trial since plaintiff's disclosures were timely, and, rather than advancing new theories to support plaintiff's case, the experts merely interpreted plaintiff's cognitive deficits (see Haynes v. City of New York, 145 A.D.3d 603, 606, 45 N.Y.S.3d 387 [1st Dept. 2016];  Rivera v. New York City Hous. Auth., 177 A.D.3d 499, 112 N.Y.S.3d 72 [1st Dept. 2019]).

However, in light of the newly disclosed interpretation of plaintiff's cognitive deficits by a neuropsychologist and a neuropsychiatrist, based on their personal examinations of plaintiff, that she suffered from early onset Alzheimer's disease that may have been caused or accelerated by her traumatic brain injury, defendants are entitled to a additional IMEs by defendants’ experts, a neuropsychologist and an Alzheimer's disease specialist.  Defendants are also entitled to a further EBT limited to plaintiff's claim of Alzheimer's disease, and the risk factors that apply to her claim.