Mohammed Al-Khilewi, appellant, v. Tyron R.Turman, respondent. (2011)

Submitted-February 23, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Fusco, J.), dated March 17, 2010, which denied his cross motion for leave to amend the bill of particulars and granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiff's cross motion for leave to amend the bill of particulars.   The amendment added a claim of exacerbation of preexisting disc herniations, and would require the defendant to reorient his defense strategy (see Barrera v. City of New York, 265 A.D.2d 516, 518;  Markarian v. Hundert, 262 A.D.2d 369, 370).   Moreover, the plaintiff failed to offer a reasonable excuse for his delay in seeking to amend the bill of particulars until over two years after the accident and after the note of issue was filed (see Barrera v. City of New York, 265 A.D.2d at 518;  Orros v. Yick Ming Yip Realty, 258 A.D.2d 387;  Kyong Hi Wohn v. County of Suffolk, 237 A.D.2d 412).

The defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352;  Gaddy v. Eyler, 79 N.Y.2d 955, 956-957).   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

RIVERA, J.P., FLORIO, DICKERSON, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court