Davino v. Pomarico
| Decision Date | 01 March 2021 |
| Docket Number | Index 612649/2018 |
| Citation | 2021 NY Slip Op 33267 (U) |
| Parties | JANAE DAVINO, Plaintiff, v. JOHN POMARICO, JENNIFER SEMENDOFF and COURTNEY SEMENDOFF, Defendants. Cal No. 202000164MV Mot. Seq. Nos. # 001 MD; # 002 XMD, #003 MG, # 004 MD |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 6/11/20 (001).
MOTION DATE 10/1/20 (002).
MOTION DATE 10/22/20(003).
MOTION DATE 10/29/20 (004).
ADJ. DATE 11/5/20 (001 &002).
ADJ. DATE 10/29/20 (003 & 004).
RAPPAPORT GLASS LEVINE & ZULLO Attorney for Plaintiff.
MILBER MAKRIS PLOUSADIS & SEIDEN, Attorney for Defendant Pomarico.
GENTILE &TAMBASCO Attorney for Defendants Semendoff.
PRESENT: Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court.
Upon the following papers read on this motion and cross motion for summary judgment and these motions to strike the pleadings: Notice of Motion/ Order to Show Cause and supporting papers by defendant Pomarico, dated May 6 2020, by defendant Pomarico, dated October 15, 2020, and by defendants Semendoff, dated October 21, 2020; Notice of Cross Motion and supporting papers by plaintiff, dated September 9, 2020; Answering Affidavits and supporting papers by plaintiff, dated October 22, 2020, by defendant Pomarico, dated October 15, 2020, and by defendants Semendoff, dated October 21, 2020; Replying Affidavits and supporting papers by defendant Pomarico, dated October 29. 2020; Other it is ORDERED that the parties' motions are consolidated for purpose of this determination; and it is
ORDERED that the motion by defendant John Pomarico seeking summary judgment dismissing the complaint is denied; and it is
ORDERED that the cross motion by plaintiff Janae Davino seeking summary judgment in her favor on the ground that she sustained a serious injury within the meaning of Section 5102 (d) of the Insurance Law is denied; and it is
ORDERED that the motion by defendant John Pomarico for, inter alia, an order striking plaintiffs supplemental verified bill of particulars is granted; and it is further
ORDERED that the motion by defendants Jennifer Semendoff and Courtney Semendoff for, inter alia, an order striking the supplemental verified bill of particulars is denied, as moot.
Plaintiff Janae Davino commenced this action to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Smithtown Avenue and South 2nd Street in the Town of Islip on August 7, 2015. Plaintiff, by her complaint, alleges that while she was riding as a front seat passenger in the vehicle owned by defendant Jennifer Semendoff and operated by defendant Courtney Semendoff, the vehicle was struck in the rear right passenger side by the vehicle owned and operated by defendant John Pomarico as it attempted to make a left turn from South 2nd Street onto Smithtown Avenue. The force of the impact allegedly caused the Semendoff vehicle to flip over and land on its roof. By her bill of particulars, plaintiff alleges, among other things, that she sustained a left wrist central triangular fibrocartilage disc tear and intrasubstance tear of the left dorsal scapholunate ligament as a result of the accident.
Defendant Pomarico now moves for an order striking plaintiffs supplemental bill of particulars dated September 8, 2020. In particular, defendant Pomarico asserts that, approximately eight months after the filing of the note of issue, plaintiff, in an attempt to undermine his defenses and to oppose his motion for summary judgment, served an amended bill of particulars, improperly denoted as a supplemental bill of particulars, alleging new claims. Defendant Pomarico further contends that plaintiff was required to obtain leave of the Court to serve the new bill of particulars after the note of issue was filed. Alternatively, defendant Pomarico seeks an order, pursuant to CPLR 3043, precluding plaintiff from presenting evidence at the time of trial as to the new injury set forth in the supplemental bill of particulars. Defendants Jennifer Semendoff and Courtney Semendoff also move to strike the supplemental bill of particulars on the same grounds as defendant Pomarico and rely on the same evidence as defendant Pomarico.
Plaintiff opposes the motion on the ground that the supplemental bill of particulars does not contain any new injuries. Rather, plaintiff asserts, the injuries set forth in the supplemental bill of particulars evince the continuing consequence of injuries that were previously suffered by her as a result of the subject accident, and that defendants were aware of the claimed injury of significant disfigurement and scarring, since she was questioned extensively on the issue at her deposition, and cannot claim they are being prejudiced by its inclusion.
"The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial" (Jones v LeFrance Leasing Ltd. Partnership, 61 A.D.3d 824, 825, 877 N.Y.S.2d 424 [2d Dept 2009]; see Jurado v Kalache, 93 A.D.3d 759, 940 N.Y.S.2d 300 [2d Dept 2012]). While a party may serve a bill of particulars once, as of right, before the filing of a note of issue (CPLR 3042 [b]), once discovery is complete and the case is certified as ready for trial, a party will not be permitted to amend his or her bill of particulars except upon a showing of "special and extraordinary circumstances" (Schreiber-Cross v State of New York, 57 A.D.3d 881, 884, 870 N.Y.S.2d 438 [2d Dept 2008]).
Furthermore, a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities, provided that no new causes of action are alleged or new injuries claimed (see CPLR 3043 [b]; Erickson v Cross Ready Mix, Inc., 98 A.D.3d 717, 950 N.Y.S.2d 717[2d Dept 2012]; Alami v 215 E6th St., L.P., 88 A.D.3d 924, 931 N.Y.S.2d 647 [2d Dept 2011]). Thus, a supplemental bill of particulars may be served without leave of the court when a plaintiff is updating continuing claims of special damages or alleging continuing consequences of the injuries allegedly suffered and described in the original bill of particulars (see Kraycar v Monahan, 49 A.D.3d 507, 856 N.Y.S.2d 123 [2d Dept 2008]; Aversa v Taubes, 194 A.D.2d 580, 598 N.Y.S.2d 801 [2d Dept 1993]). However, where a supplemental bill of particulars asserts new injuries, a new theory of liability or a new category of damages, it will be deemed an amended bill of particulars (see Pearce v Booth Mem. Hosp., 152 A.D.2d 553, 543 N.Y.S.2d 157 [2d Dept 1989]), requiring the plaintiff to obtain leave of the court (see CPLR 3025 [b]).
In the instant matter, plaintiff served defendant Pomarico with a purported supplemental verified bill of particulars after the filing of the note of issue. "A plaintiff cannot simply avoid the application of the rule that a supplemental pleading does not supersede the original pleading, but is in addition to it (see Lovisa Constr. Co. v Facilities Dev. Corp., 148 A.D.2d 913, 539 N.Y.S.2d 541 [2d Dept 1989]), by denominating as a 'supplemental' pleading one that asserts new injuries [or] a new category of damages, and which is therefore properly an amended pleading" (Mendrzycki v Cricchio, 58 A.D.3d 171, 175, 868 N.Y.S.2d 107 [2d Dept 2008], quoting Fuentes v City of New York, 3 A.D.3d 549, 550, 771 N.Y.S.2d 178 [2d Dept 2004]). Here, plaintiffs supplemental bill of particulars was, in reality, an amended bill of particulars, as it sought to add a new category of injury (see Kyong Hi Wohn v County of Suffolk, 237 A.D.2d 412, 654 N.Y.S.2d 826 [2d Dept 1997]). As a consequence, the bill of particulars served in September 2020 was a nullity (see Bartkus v New York Methodist Hosp., 294 A.D.2d 455, 742 N.Y.S.2d 554 [2d Dept 2002]; Golub v Sutton, 281 A.D.2d 589, 723 N.Y.S.2d 59 [2d Dept 2001]).
Plaintiffs original bill of particulars, dated November 9, 2018 alleged, among other things, that she sustained a left wrist central triangular fibrocartilage disc tear and an intrasubstance tear of the left dorsal scapholunate ligament. Plaintiffs original bill of particulars does not state that she sustained a significant disfigurement or any scarring to her left wrist or to any part of her body. However, plaintiff, in the September 2020 bill of particulars, alleges for the first time that she suffered an injury within the "significant disfigurement" and the "permanent consequential limitation of use" categories of Insurance Law § 5102 (d) (see Brackenbury v Franklin, 93 A.D.3d 423, 939 N.Y.S.2d 63 [2d Dept 2012]; DeNicola v Mary Immaculate Hosp., 272 A.D.2d 505, 708 N.Y.S.2d 152 [2d Dept 2000]; cf Alicino v Rochdale Vil., Inc., 142 A.D.2d 937, 37 N.Y.S.3d 557 [2d Dept 2016]). Defendant Pomarico has shown that the inclusion of a claim of a serious disfigurement in the "supplemental" bill of particulars served upon him, approximately eight months after the filing of the note of issue, is not merely sequelae of plaintiff s original injuries, but is an entirely new claim; therefore, it cannot be said that plaintiff merely was particularizing her originally pleaded allegations in the amended verified bill of particulars, which can be asserted, as of right, pursuant to CPLR 3043 (b) (see Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 26 N.Y.S.3d 231 [2015]; Pines v Muss Dev. Co., 172 A.D.2d 600, 568 N.Y.S.2d 422 [2d Dept 1991]). Rather, plaintiff is adding a new claim for significant disfigurement, that was not in the original complaint or bill of particulars, and consequently, such attempt was improper (see Castleton v Broadway Mall Props., Inc., 41 A.D.3d 410, 837 N.Y.S.2d 732 [2d Dept 2007]; Fuentes v City of New York, 3 A.D.3d 549, 771 N.Y.S.2d 178 [2d Dept 2004]). Nor can it be said that de...
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