CRUZ v. SHARKEY TRUCKING CORP (2021)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about May 30, 2019, which denied plaintiff's motion to amend his bill of particulars, unanimously affirmed, without costs.

Supreme 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 (see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983]).  Plaintiff failed to explain his delay in moving to amend after serving his original and two supplemental bills of particulars (see Reuling v. Consolidated Edison Co. of N.Y., Inc., 138 A.D.3d 439, 30 N.Y.S.3d 605 [1st Dept. 2016];  Henchy v. VAS Express Corp., 115 A.D.3d 478, 479–480, 981 N.Y.S.2d 418 [1st Dept. 2014]), none of which mentioned a head injury, brain injury, cognitive defects, personality changes, or depression resulting from the accident (Lopez v. City of New York, 80 A.D.3d 432, 433, 914 N.Y.S.2d 128 [1st Dept. 2011]).  Nor did the portion of plaintiff's deposition testimony describing headaches and forgetfulness place defendants on notice that plaintiff would assert these new injuries six years later (see Biondi v. Behrman, 149 A.D.3d 562, 564, 53 N.Y.S.3d 265 [1st Dept. 2017], lv dismissed in part, denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017]).  Given the time that has passed since the incident, defendants effectively have been prevented from conducting a meaningful medical examination (see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981]).  Similarly, the court properly found that the proposed amendments lack merit, as, among other things, plaintiff proffered no “contemporaneous objective evidence of injury” (Henchy, 115 A.D.3d at 479–480, 981 N.Y.S.2d 418).