Zito v City of New York

Zito v City of New York 2010 NY Slip Op 02846 [72 AD3d 451] April 6, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Charles Zito, Appellant,
v
City of New York, Respondent, et al., Defendant.

—[*1] Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 14, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend and supplement his bill of particulars and granted defendant City of New York's motion to preclude plaintiff's expert from testifying, unanimously affirmed, without costs.

The court properly denied plaintiff's motion to amend and supplement his bill of particulars to incorporate a new theory of liability after the filing of the note of issue and absent a reasonable excuse for the delay in moving (Lupo v Pro Foods, LLC, 68 AD3d 607, 608 [2009]). In light of the foregoing, the court properly precluded plaintiff's expert from testifying as to the new theory. Concur—Friedman, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.