Blumenthal v. 1979 Marcus Ave. Assocs., LLC
| Citation | 203 A.D.3d 1122,163 N.Y.S.3d 420 (Mem) |
| Decision Date | 30 March 2022 |
| Docket Number | 2020–01265,Index No. 600578/18 |
| Parties | Robin BLUMENTHAL, appellant, v. 1979 MARCUS AVENUE ASSOCIATES, LLC, respondent. |
| Court | New York Supreme Court Appellate Division |
203 A.D.3d 1122
163 N.Y.S.3d 420 (Mem)
Robin BLUMENTHAL, appellant,
v.
1979 MARCUS AVENUE ASSOCIATES, LLC, respondent.
2020–01265
Index No. 600578/18
Supreme Court, Appellate Division, Second Department, New York.
Argued—January 21, 2022
March 30, 2022
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellant.
McCarthy & Associates, Melville, N.Y. (Marianne Arcieri of counsel), for respondent.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered January 22, 2020. The order denied the plaintiff's motion for leave to amend the bill of particulars.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant in January 2018 to recover damages for personal injuries she allegedly sustained on October 11, 2017, after tripping while exiting a parking garage doorway. The property where the accident occurred was owned by the defendant. In the bill of particulars, the plaintiff alleged that the accident occurred due to the defendant's negligence in maintaining the walkway free from a tripping hazard,
and that as a result of her fall, she sustained a fractured elbow and sprained knee. The plaintiff thereafter testified during an October 25, 2018 deposition that her fall occurred after her right foot had become caught in a crack in the sidewalk ramp, and that, while the lighting conditions in the subject area were "dim," she was able to see the ground in front of her. Furthermore, the plaintiff testified that on January 3, 2018, she began seeing Esther Lipstein, a rheumatologist, due to pain "[a]ll over [her] body," and that Lipstein subsequently diagnosed her with fibromyalgia, which Lipstein told the plaintiff could have been the result of trauma.
On or about February 25, 2019, the plaintiff filed a note of issue and certificate of readiness, after which the matter was placed on the Supreme Court's trial calendar. By notice of motion dated October 21, 2019, the plaintiff moved for leave to amend the bill of particulars to add a new theory of liability—that her injuries were caused by "bad or dim lighting"—and a new claim of injury—"traumatically induced fibromyalgia." The defendant opposed the motion.
By order entered January 22, 2020, the Supreme Court denied the plaintiff's motion for leave to amend the bill of particulars to add the new injury and the new theory of...
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