Opinion
# 2021-032-022 Claim No. 123459 Motion No. M-95702 Cross-Motion No. CM-95780
03-01-2021
MICHAEL HOWELL v. CITY UNIVERSITY OF NEW YORK
Hach & Rose, L.L.P. By: John A. Blyth, Esq. Hon. Letitia James, Attorney General By: Indira Mahabir, AAG
Synopsis
Defendant's motion to strike supplemental bill of particulars and to strike report of claimant's expert granted in part. Supplemental bill of particulars is stricken. Motion to preclude expert report is denied. Claimant's cross motion to amend the bill of particular is granted.
Case information
| UID: | 2021-032-022 |
| Claimant(s): | MICHAEL HOWELL |
| Claimant short name: | HOWELL |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123459 |
| Motion number(s): | M-95702 |
| Cross-motion number(s): | CM-95780 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Hach & Rose, L.L.P. By: John A. Blyth, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Indira Mahabir, AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 1, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on November 6, 2013. Issue was joined by defendant's filing of an answer on December 6, 2013. On October 25, 2018, claimant filed a note of issue and certificate of readiness for trial. A bifurcated trial on liability was held on April 17 and 18, 2019. By a Decision and Order dated January 22, 2020 and filed on February 25, 2020, the Court found defendant 100% liable for claimant's injuries (Howell v City Univ. of New York, UID No. 2020-032-005 [Ct Cl, Hard, J., Jan. 22, 2020]). Defendant now moves to strike claimant's supplemental bill of particulars served on May 16, 2020. Defendant argues that the 5/16/20 Bill of Particulars is not a supplemental bill of particulars, rather, it is an amended bill of particulars and claimant was required to obtain leave from the Court prior to its service. Claimant opposes the motion and cross moves for leave to supplement and/or amend the bill of particulars. Defendant opposes claimant's cross-motion.
PROCEDURAL HISTORY
Claimant served a verified bill of particulars on February 5, 2014 (Mahabir Aff., Exhibit E). Claimant then served an amended verified bill of particulars on April 28, 2014 (Mahabir Aff., Exhibit F). Claimant served a supplemental verified bill of particulars on May 9, 2017 (Mahabir Aff., Exhibit G). A second supplemental verified bill of particulars was served on March 14, 2018 (Mahabir Aff., Exhibit H). A third supplemental verified bill of particulars was served on September 5, 2018 (Mahabir Aff., Exhibit I). Following the Court's Decision and Order finding the State liable for claimant's injuries, claimant served a fourth supplemental bill of particulars on May 16, 2020 (5/16/20 Bill of Particulars) (Mahabir Aff., Exhibit A). Included with the 5/16/20 Bill of Particulars was the vocational report of Dr. Richard Schuster, Ph.D. (Mahabir Aff., Exhibit C).
LAW AND DISCUSSION
An amended bill of particulars may assert new theories of liability, new injuries, and new categories of special damages (see Vargas v Villa Josefa Realty Corp., 28 AD3d 389, 391 [1st Dept. 2006]; Wolfer v 184 Fifth Ave. LLC, 27 AD3d 280, 280 [1st Dept. 2006]). A party may serve an amended bill of particulars once as of course prior to the filing of the note of issue (CPLR 3042 [a]).
"A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial" (CPLR 3043 [b]). The supplemental bill of particulars may not assert a new cause of action or a new injury (id.).
Defendant argues that the 5/16/20 Bill of Particulars is a nullity and should be stricken because it is not a supplemental bill of particulars, as classified by claimant, but rather, it is an amended bill of particulars. As correctly noted by defendant, an amended bill of particulars may not be served after the filing of the note of issue without leave of the Court (Leon v First Nat. City Bank, 224 AD2d 497, 498 [2d Dept. 1996]), while a supplemental bill of particulars may be served at any time without leave of the Court, as long as the supplemental bill of particulars is served 30 days prior to trial. Thus, the Court must first determine whether the 5/16/20 Bill of Particulars is properly characterized as a supplemental bill of particulars or an amended bill of particulars.
A trial on damages for this claim has not yet been scheduled.
The February 5, 2014 verified bill of particulars stated that claimant suffered a fracture of the lumbar spine at L4 and L5 and experienced pain in his limbs (2/5/14 Bill of Particulars ¶ 12). The 2/5/14 Bill of Particulars also stated that "[s]pecial damages incurred will be provided upon receipt" (id. ¶¶ 19-20). The March 14, 2018 second supplemental bill of particulars (3/14/18 Bill of Particulars) expanded on the injuries to claimant's lumbar spine and left foot. The September 5, 2018 third supplemental bill of particulars (9/5/18 Bill of Particulars) listed claimant's future medical costs and included the expert report of claimant's physical medicine and rehabilitation expert. The 9/5/18 Bill of Particulars also stated that claimant "reserves the right to supplement and/or amend this response to include additional special and economic damages up to and at the time of trial." The 5/16/20 Bill of Particulars states as follows:
Plaintiff MICHAEL HOWELL is claiming the following special damages:
•Income Loss: $1,620,841
•Loss in social security retirement income: $123,669
•The future cost of health care: $610,728
•Total economic loss: $2,355,239.
Defendant argues that none of the five prior bill of particulars served prior to the note of issue listed damages for lost earnings or lost social security retirement income. In response, claimant points out that the February 5, 2014 first verified bill of particulars stated that "[s]pecial damages incurred will be provided upon receipt" (2/5/14 Bill of Particulars ¶¶ 19-20). Moreover, the September 5, 2018 third supplemental bill of particulars also stated that "[p]laintiff reserves the right to supplement and/or amend this response to include additional special and economic damages up to and at the time of trial" (9/5/18 Bill of Particulars ¶¶ 19-20). Special damages include "[m]edical expenses, impairment of earning capacity, aggravation of pre-existing injury, and loss of profits" (Siegel, N.Y. Prac § 3:12). Thus, the Court must determine if claimant's statements reserving his right to assert additional special damages was sufficient to apprise defendant of the claims for lost earnings and loss in social security retirement income.
The Court finds that the supplemental bill of particulars is instead an amended bill of particulars as "its purpose was not to update allegations of special damages previously asserted but, rather, to add a new claim for future loss of earnings" (Bauch v Verrilli, 176 AD2d 1116, 1117 [2d Dept. 1991]). Although claimant argues that he reserved his right to assert additional special damages, the lost earnings and lost social security income alleged in the 5/16/20 were not previously referenced in any of the prior pleadings and are therefore "a wholly new category of special damages" (Pearce v Booth Mem. Hosp., 152 AD2d 553, 554 [2d Dept. 1989]).
Turning then to claimant's cross motion to amend the bill of particulars, "[w]hile a court has broad discretion in deciding whether leave to amend should be granted, it is considered an improvident exercise of discretion to deny leave to amend in the absence of an inordinate delay and a showing of prejudice to the defendant" (Scarangello v State of New York, 111 AD2d 798, 799 [2d Dept. 1985]).
Defendant argues that the Court should deny claimant's motion to amend the bill of particulars because claimant failed to proffer a sufficient excuse for the delay in moving to amend the bill of particulars and also failed to establish the merit for the proposed amendment. While an affidavit of merit may be required where there is an inordinate delay in moving to amend the bill of particulars (Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555 [2d Dept. 1997]), the Court does not find that such inordinate delay exists here. Claimant's 2/5/14 Bill of Particulars stated that "[s]pecial damages incurred will be provided upon receipt" (2/5/14 Bill of Particulars ¶¶ 19-20). Moreover, the September 5, 2018 third supplemental bill of particulars also stated that "[p]laintiff reserves the right to supplement and/or amend this response to include additional special and economic damages up to and at the time of trial" (9/5/18 Bill of Particulars ¶¶ 19-20). The 5/16/20 Bill of Particulars, which was supported by the vocational report prepared by Dr. Schuster, was served promptly after the report was completed.
"Generally, courts have allowed amendments to pleadings and bills of particulars, even at or after trial, absent proof of actual prejudice to the other party" (Kurnitz v Croft, 91 AD2d 972, 973 [2d Dept. 1983]; see also Wilcox v Newark Valley Cent. School Dist., 129 AD3d 1230, 1233 [3d Dept. 2015], lv dismissed 26 NY3d 1060 [2015]). Notably absent from defendant's papers is any claim that it would be prejudiced if the Court were to grant claimant's motion to amend the bill of particulars. Claimant argues that, prior to defendant's filing the instant motion to strike the 5/16/20 Bill of Particulars and preclude the report of Dr. Schuster, claimant offered to allow defendant time to retain its own vocational rehabilitation and economic expert and also offered to produce claimant for a further deposition (Blyth Aff., Exhibit C). Therefore, provided that defendant is allowed time to conduct further discovery as to the special damages claimed in the 5/16/20 Bill of Particulars, there is no prejudice to defendant in allowing the amendment (see Watson v State of New York, UID No. 2008-030-507 [Ct Cl, Scuccimarra, J., Feb. 25, 2008]). Accordingly, the Court grants claimant's motion to amend the bill of particulars.
Defendant also moves to preclude the report of Dr. Schuster on the ground that claimant failed to allege a psychological injury as the result of the incident described in the claim. Therefore, defendant argues that Dr. Schuster's report should be precluded because it opines on claimant's cognitive abilities and mental decline as a result of the injuries he suffered. Defendant further claims that Dr. Schuster's report is a "back door attempt" to introduce psychological injuries (Mahabir Response Aff. ¶ 11). Claimant states that he does not allege a psychological injury and informed defendant's counsel prior to the filing of the instant motion that he did not allege a psychological injury.
Claimant's expert disclosure for Dr. Schuster states that Dr. Schuster will testify as to claimant's "education, employment and wage earning capacity, and the effects that claimant's injuries have had and will have on claimant in the future, particularly concerning his employability and wage earning capacity" (Mahabir Aff., Exhibit C, ¶ 2). The Court has reviewed Dr. Schuster's report. The cover letter of the report states that claimant was referred to Dr. Schuster "to assess his current status with particular emphasis on the effect of his condition upon his future vocational potential and quality of life" (Mahabir Aff., Exhibit C). In preparing the report, Dr. Schuster reviewed claimant's medical records and deposition testimony. While Dr. Schuster's report makes some references to treatment for mental health issues, the report largely focuses on claimant's physical injuries and the effect those injuries have on claimant's vocational prospects. Moreover, claimant reiterates multiple times in his papers submitted on the instant motion that he will not be seeking damages for a psychological injury. Given claimant's own representations regarding the purpose of Dr. Schuster's report, the Court finds that preclusion of the entire report would be inappropriate. Claimant may rely on the report to prove his damages related to his vocational prospects. The amount of weight to be accorded to Dr. Schuster's report in regard to claimant's vocational prospects is a matter to be determined by the Court at the trial on damages (see Latini v Barwell, 181 AD3d 1305, 1306 [4th Dept. 2020] [holding that any alleged inconsistencies in an expert's report go to the credibility of the expert, to be determined at trial]).
Defendant's other argument in favor of preclusion is that the report is highly speculative because Dr. Schuster did not analyze the effect of claimant's boxing injuries on his ability to work and that Dr. Schuster failed to review records from Kings County Hospital from six months prior to the accident. Such arguments go to the merits of claimant's bill of particulars and " '[a] motion directed at a [claimant's] bill of particulars is an improper vehicle for the examination of the merits . . . of the claims made in the bill' " (Bauch v Verrilli, 176 AD2d at 1117, quoting Sentowski v Boulevard Hosp., 109 AD2d 878, 878 [2d Dept. 1985]).
Based upon the foregoing, defendant's motion (M-95702) to strike claimant's supplemental bill of particulars is GRANTED. The supplemental bill of particulars is hereby stricken. Defendant's motion to preclude the report of Dr. Schuster is DENIED. Claimant's cross motion to amend the bill of particulars (CM-95780) is GRANTED. Claimant is directed to file and serve the amended bill of particulars within twenty (20) days of the date this Decision and Order is filed by the Clerk of the Court.
March 1, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated July 29, 2020; and Affirmation in Support of Motion, affirmed by Indira Mahabir, AAG on July 29, 2020, with Exhibits A through K annexed thereto. 2. Notice of Cross-Motion, dated August 12, 2020; and Affirmation in Support of Cross-Motion, affirmed by John A. Blyth, Esq. on August 12, 2020 with Exhibits A through D annexed thereto. 3. Affirmation in Response, affirmed by Indira Mahabir, AAG on September 3, 2020 with Exhibits A and B annexed thereto. 4. Reply Affirmation, affirmed by John A. Blyth, Esq. on September 10, 2020 with Exhibit A annexed thereto.