Summary
In Pearce v. Booth Mem. Hosp. (152 A.D.2d 553, 554), this Court held that a plaintiff had no right to serve a supplemental bill of particulars pursuant to CPLR 3043 (b) so as to add a claim for "custodial, supervisory, and housekeeping care", since that was a "wholly new category of special damages", which required court-approved leave to amend.
Summary of this case from Aversa v. TaubesOpinion
July 3, 1989
Appeal from the Supreme Court, Queens County (Beerman, J.).
Ordered that the appeal from the order dated May 3, 1988, is dismissed, as that order was superseded by the order dated August 30, 1988, made upon reargument; and it is further,
Ordered that the order dated August 30, 1988, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
This action is premised on generally stated acts of malpractice which allegedly occurred in 1979. Neither in the original bills of particulars served in 1982 nor in an amended bill served in 1984, the year the note of issue and statement of readiness were filed, did the plaintiff allege as items of special damage the cost of custodial, supervisory and housekeeping care. It was not until November 1987 after jury selection was aborted and adjournments granted, that the plaintiff attempted to serve what he labeled a "supplemental bill" which included a $3,000,000 special damage claim for custodial, supervisory and housekeeping care from 1979 to the present. When the defendants rejected the "supplemental bill", the plaintiff unsuccessfully sought leave to amend his bills of particulars so as to include that $3,000,000 special damage claim.
The plaintiff's present assertion to the contrary notwithstanding, he had no right to serve the disputed bill of particulars pursuant to CPLR 3043 (b). Since the plaintiff was not merely updating allegations of special damages previously asserted but was rather adding a wholly new category of special damages, leave to serve the disputed bill was necessary (see, Kurnitz v Croft, 91 A.D.2d 972; cf., March v St. Volodymyr Ukranian Catholic Church, 117 A.D.2d 864). Given the timing of the motion, the age of the case, and the lack of acceptable excuse for the delay in raising these allegations of additional damages, we conclude that the Supreme Court's refusal to grant the plaintiff leave to amend was a proper exercise of discretion (see, Alexander v Seligman, 131 A.D.2d 528; Matter of Schwartz v New York City Tr. Auth., 104 A.D.2d 370; see also, March v St. Volodymyr Ukranian Catholic Church, supra, at 864). Bracken, J.P., Rubin, Harwood and Balletta, JJ., concur.