Linda Daly-Caffrey, respondent, v. Alfred Licausi, appellant.

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Linda Daly-Caffrey, respondent, v. Alfred Licausi, appellant.

2009-02269 (Index No. 17102/07)

Decided: February 16, 2010

REINALDO E. RIVERA, J.P. JOSEPH COVELLO DANIEL D. ANGIOLILLO JOHN M. LEVENTHAL SHERI S. ROMAN, JJ. Breen & Clancy, Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for appellant. Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Ben Bartolotta of counsel), for respondent.

Submitted-October 28, 2009

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated February 17, 2009, which denied his motion to dismiss the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and granted the plaintiff's cross motion for leave to amend the bill of particulars.

ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof granting the plaintiff's cross motion for leave to amend the bill of particulars and substituting therefor a provision denying the cross motion;  as so modified, the order is affirmed, without costs or disbursements.

“Motions to amend or supplement a bill of particulars are governed by the same standards as those applying to motions to amend pleadings” (Koch v. St. Francis Hospital, 112 A.D.2d 142, 143;  see Carranza v. Brooklyn Union Gas Co., 233 A.D.2d 287).   A plaintiff seeking leave to amend a bill of particulars by asserting a new injury must show a reason for the delay in asserting the injury and include a medical affidavit showing a causal connection between the alleged injury and the original injuries sustained (see Kyong Hi Wohn v. County of Suffolk, 237 A.D.2d 412;  Simino v St. Mary's Hosp. of Brooklyn, Catholic Med. Ctr. of Brooklyn & Queens, 107 A.D.2d 800).   In this case, the plaintiff sought to add a new injury to the bill of particulars which had not been mentioned previously, and which did not appear in the medical records until nearly a year after the date of the accident.   Under these circumstances, it was an improvident exercise of discretion to grant the plaintiff leave to amend her bill of particulars (see Kraycar v. Monahan, 49 AD3d 507).

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see McMillan v. Naparano, 61 AD3d 943;  Lunja v. Mocha Limo Car Serv., 50 AD3d 971;  Dettori v. Molzon, 306 A.D.2d 308).   Since the defendant failed to satisfy his prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Weingrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

RIVERA, J.P., COVELLO, ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Copied to clipboard