Thorpe v. Sigma Transp.

Full title: LISA THORPE, as Administrator of the Estate of BEATRICE A. THORPE…

Court: Supreme Court, Kings County

Date published: Jan 6, 2022

2022 N.Y. Slip Op. 30107 (N.Y. Sup. Ct. 2022)

Opinion

Index 500586/2017

01-06-2022

LISA THORPE, as Administrator of the Estate of BEATRICE A. THORPE, Deceased, Plaintiffs, v. SIGMA TRANSPORTATION INC., TREY R. UTSEY, BUENA VIDA CORP. d/b/a BUENA VIDA CORP. d/b/a CONTINUING CARE AND REHABILITATION CENTER, Defendants. SIGMA TRANSPORTATION, INC. and TREY R. UTSEY, Third-Party Plaintiffs, v. ERLEEN EDWARDS, Third-Party Defendant

HON. BERNARD J. GRAHAM, JUSTICE

Unpublished Opinion

DECISION/ORDER

HON. BERNARD J. GRAHAM, JUSTICE

Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: to strike plaintiffs Supplemental Verified Bill of Particulars, pursuant to CPLR § 3043._

Papers	Numbered
Notice of Motion and Affidavits Annexed.......................	1-2
Order to Show cause and Affidavits Annexed.............	__
Answering Affidavits...................................................	_3_
Replying Affidavits......................................................	__4_
Exhibits........................................................................	__
Other:....... (memo)..............................................................	__

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Counsel for the defendant Buena Vida Continuing Corp. and Buena Vida Continuing Care & Rehabilitation Center ("Buena Vida") has moved (seq. 8) for an Order, pursuant to CPLR § 3043, to strike plaintiffs Supplemental Verified Bill of Particulars dated July 27, 2021 on the grounds that plaintiff has alleged new causes of action and claims new injuries within the Supplemental Verified Bill of Particulars.

Counsel for the plaintiff has opposed the relief sought in defendant's motion upon the grounds that the Supplemental Bill of Particulars constitutes a more specific statement of defendant's malpractice and the injuries that were sustained which were alleged in plaintiffs complaint dated January 11, 2017 (paragraphs 50 and 51 thereof), as well as in plaintiffs amended complaint dated March 9, 2017 (paragraphs 48-49 and 57 thereof).

Background:

On or about January 11, 2017, an action was commenced on behalf of Lisa Thorpe, as Administrator of the Estate of Beatrice A. Thorpe ("plaintiff), against the defendants by the filing of a summons and complaint with the Clerk's office of Kings County. Issue was joined by the service of answer by defendant Sigma Transportation, Inc. ("Sigma Transportation"). Thereafter, on or about March 9, 2017, the plaintiff filed with the Kings County Clerk's office a supplemental summons and amended complaint. In said complaint, plaintiff alleges that Beatrice A. Thorpe ("decedent") sustained serious injuries as a result of a one car motor vehicle accident which occurred on November 9, 2015 on the Brooklyn Queens Expressway in Brooklyn, New York. Issue was joined on or about April 6, 2017, by the service of a verified answer on behalf of defendant Buena Vida. Thereafter, on or about April 10, 2017, defendants Sigma Transportation, Inc. ("Sigma Transportation") and Trey R. Utsey ("Utsey") filed their answers to plaintiffs Amended Complaint.

On or about May 11, 2017, defendants Sigma Transportation and Utsey filed a Third-Party Summons and Complaint against Erleen Edwards ("Edwards").¹ Edwards appeared on or about August 3, 2017, by the service of a verified answer to Third-Party Plaintiffs Third-Party Complaint.

1 Erleen Edwards was an employee of Ruena Vida at the time of the accident.

In a related case, Edwards commenced an action, on or about January 11, 2017, against Sigma Transportation, Buena Vida and Utsey, (Index # 500582/2017) alleging that she sustained injuries as a result of the aforementioned motor vehicle accident.

On October 17, 2019, an Order was issued by the Hon. Francois Rivera of this Court, in which the two actions were consolidated for trial.

Thereafter, several orders were issued by this Court which provided for discovery and the filing of Note of Issue which dates for filing were extended due to the inability to complete discovery.

On April 19, 2021, an Order was issued by the Hon. Lawrence Knipel which directed that the Note of Issue be filed by July 30, 2021. Prior to July 30, 2021, counsel for the plaintiff moved to compel outstanding discovery and once again extend the time to file the Note of Issue. In an order dated October 23, 2021, Judge Knipel granted plaintiffs motion to the extent of directing the defendant to furnish a copy of decedent's medical records. Said order further provided that the Note of Issue be filed by May 2022.

Facts:

On November 9, 2015, the decedent who was a resident of Buena Vida, was being transported by ambulette (Sigma Transportation) to a dental appointment. The ambulette was being driven by co-defendant Utsey and the decedent was accompanied in the ambulette by Edwards. It is alleged that during the trip, the ambulette came to a sudden stop which resulted in both the decedent and Edwards being thrown to the floor of the vehicle.² It is further alleged that as a result of the accident, the decedent sustained a fracture to her left tibia, and injured her shoulder as well as her back. Thereafter, the decedent was hospitalized for four days at New York Methodist Hospital ("Methodist Hospital") in Brooklyn, New York during which time her leg was fitted with a cast or a brace which she wore for about two months (see plaintiffs EBT p. 28-29, 59-60).

2 The decedent allegedly slid out of the wheelchair to which she was confined (see Plaintiffs EBT p. 29).

Following the accident, the decedent allegedly continued to complain of pain to her back, buttocks and leg (see plaintiffs EBT p. 38). The decedent, who became a resident of Buena Vida in 2015, (see plaintiffs EBT p. 16) continued to reside at that facility following her discharge from Methodist Hospital. It is alleged that the decedent was primarily confined to her bed during the period of time that she wore the cast (see plaintiffs EBT p. 35).

In March 2016, the decedent, who had developed a fever, was transferred to the Brooklyn Hospital Center where she remained until her death on April 9, 2016, which was allegedly attributable to her kidneys failing after having developed an infection (see plaintiffs EBT p. 41).

Parties' Contentions:

Here, the Court is presented with the issue as to whether plaintiffs First Supplemental Verified Bill of Particulars alleges any new causes of action against defendant Buena Vida or claims new injuries, and whether the delay in the assertion of said additional claims amounts to surprise or prejudice to Buena Vida.

In support of defendant Buena Vida's motion to strike plaintiffs First Supplemental Verified Bill of Particulars, counsel argues that plaintiff has alleged new causes of action and claims new injuries therein, as the Complaint and Verified Bill of Particulars only assert claims pertaining to the alleged failure to secure the decedent in connection with the fall on November 9, 2015. Counsel for defendant asserts that the allegations of new theories of negligence pertaining to the subsequent care and treatment of the decedent during an unspecified time after the November 9^th fall, which allegedly resulted in additional injuries, including pressure ulcers, must be stricken from plaintiffs First Supplemental Verified Bill of Particulars, as it has been years since the action was initiated and no discovery has been conducted on these issues.

Plaintiff, by her attorneys, opposes the relief sought in the motion by arguing that the First Supplemental Verified Bill of Particulars amplifies the causes of action alleged in the Complaint and the Verified Bill of Particulars by alleging continuing consequences of the injuries referenced in the pleadings. Counsel asserts the original and amended Complaints contain allegations concerning the post-accident treatment resulting in a "worsening" of the decedent's condition, as well as the development of "infection" and "sepsis," and the allegations relating to pressure ulcers are a specification of these statements.

Discussion:

"The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial." Jurado v Kalache, 93 A.D.3d 759, 760 [2d Dept 2012]. Pursuant to CPLR §3043(b), "(a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities . . . [p]rovided however that no new cause of action may be alleged or new injury claimed." The supplemental bill of particulars must "not set forth a new legal theory of liability or new injuries, but merely expands upon the continuing disabilities alleged in the original bill" (Cardone v University Hosp., 78 A.D.2d 645). Mazzilli v Citv of New York, 154 A.D.2d 355, 356-57 [2d Dept 1989]; see also Kraycar v Monahan, 49 A.D.3d 507 [2d Dept 2008]; Dalrvmple v Koka, 295 A.D.2d 469 [2d Dept 2002]. When a new cause of action is being alleged, or a new injury claimed, CPLR §3042(b) states that ".. .a party may amend the bill of particulars once as of course prior to the filing of a note of issue." Pursuant to CPLR §3025(b), "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties..." Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless "the proposed amendment is palpably insufficient or patently devoid of merit." Rodgers v New York Citv Tr. Auth.. 109 A.D.3d 535, 536 [2d Dept 2013].

By asserting in the First Supplemental Verified Bill of Particulars³ various injuries related to care provided subsequent to decedent's alleged fall while being transported on November 9^th, plaintiff was not merely amplifying her prior response to demand number 14 in the Verified Bill of Particulars, but rather was adding new allegations which had not been asserted in the Complaint. In response to Buena Vida's demand for a Bill of Particulars, plaintiff only provided one date and time for the incident at issue, November 9, 2015 at approximately 12:50pm, rather than specifying a period of time the decedent was under Buena Vida's care.⁴ In addition, the only specific allegations listed make reference to the decedent's alleged fall. While general statements such as "failure to timely and properly complete and prepare the comprehensive care plan" and "failed to provide proper and timely medical services" are included, as well as the vague assertion of a post-accident "worsening" of decedent's condition that plaintiffs counsel repeatedly refers to in the opposition, such language is boilerplate and does not indicate in any way that the plaintiff was alleging medical malpractice on behalf of Buena Vida for the alleged development of the decedent's pressure ulcers. This Court has reviewed the Complaint and the Verified Bill of Particulars and has found they are devoid of any mention of pressure ulcers.

3 The First Supplemental Verified Bill of Particulars is dated July 27, 2021, which is six years after the alleged incident and four years since the filing of the Verified Bill of Particulars (dated July 17, 2017).

4 It appears the time period plaintiff should have specified was from the decedent's transfer back to Buena Vida in mid-November 2015 to March 2016. (See Motion by Buena Vida, p. 11).

While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise, here, the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries. Kirk v Nahon, 160 A.D.3d 823, 824 [2d Dept 2018]; see Rodeers v New York City Tr. Auth., 109 A.D.3d 535, 537 [2013]). This Court has considered defendant's argument that plaintiff failed to amend the Bill of Particulars within twenty (20) days after it was served, and that in the four (4) years between the service of the Verified Bill of Particulars and First Supplemental Verified Bill of Particulars there was no discovery conducted on any issue other than the November 9^th incident. Plaintiff also has failed to present any cognizable reason why these claims were not asserted at the same time as those pertaining to the November 9^th incident.

Conclusion:

Accordingly, defendant Buena Vida's motion to strike plaintiffs First Supplemental Verified Bill of Particulars, pursuant to CPLR §3043(b), is granted only to the extent that the portion of plaintiff s First Supplemental Verified Bill of Particulars that asserts any new claims pertaining to a time period subsequent to November 9, 2015 are stricken, as are any additional injuries resulting from said claims.

This shall constitute the decision and order of this Court.