Mayer v. Hoang
| Decision Date | 29 April 2011 |
| Parties | William J. MAYER and Lisa A. Mayer, Plaintiffs–Appellants,v.Henry HOANG, Individually and Doing Business as Henry's Nails, Defendant–Respondent. |
| Court | New York Supreme Court — Appellate Division |
83 A.D.3d 1516
921 N.Y.S.2d 426
2011 N.Y. Slip Op. 03391
William J. MAYER and Lisa A. Mayer, Plaintiffs–Appellants,
v.
Henry HOANG, Individually and Doing Business as Henry's Nails, Defendant–Respondent.
Supreme Court, Appellate Division, Fourth Department, New York.
April 29, 2011.
[921 N.Y.S.2d 427]
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs–Appellants.Cohen & Lombardo, P.C., Buffalo (Jonathan D. Cox of Counsel), for Defendant–Respondent.PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:
[83 A.D.3d 1517] Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries allegedly sustained
[921 N.Y.S.2d 428]
by William J. Mayer (plaintiff) when he fell from a ladder while removing a light fixture from the exterior of Henry's Nails, a business owned by defendant. Contrary to plaintiffs' contention, we conclude that Supreme Court did not abuse its discretion in granting that part of defendant's motion seeking to compel plaintiffs to serve a supplemental bill of particulars that included wage loss calculations to be verified by plaintiff, subject to preclusion of a claim for any such damages in the event of plaintiffs' failure to comply with that part of defendant's motion ( see CPLR 3042[d] ).
We recognize that “ ‘[t]he purpose of a bill of particulars is to amplify the pleadings, limit proof, and prevent surprise at trial; it is not an evidence-gathering device’ ” ( Khoury v. Chouchani, 27 A.D.3d 1071, 1072, 811 N.Y.S.2d 257). Nevertheless, we conclude that plaintiffs failed to provide an adequate response to defendant's demand for information concerning plaintiff's “time lost and loss of income sustained.” In their bill of particulars, plaintiffs' response thereto was that the total amount of lost earnings was “unknown at the present time and will be supplemented in the future.” Plaintiffs thereafter produced a computer printout that purported to show plaintiff's earnings from the year 2000 through the year 2008, when the accident occurred. After plaintiff's deposition and in response to a follow-up letter from defendant, plaintiffs refused to provide any additional information concerning lost earnings, stating merely that the bill of particulars would be supplemented “in accordance with the requirements of the CPLR.” The record reflects, however, that plaintiffs had more than sufficient time to provide a calculation [83 A.D.3d 1518] of plaintiff's lost wages, particularly in light of the fact that plaintiff had already returned to his “normal amount of activities” at the time of his deposition in 2010, and the fact that correspondence from plaintiffs' attorney following plaintiff's deposition did not indicate that plaintiffs lacked any information...
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