Anderson v Ariel Servs., Inc.

Anderson v Ariel Servs., Inc. 2012 NY Slip Op 02038 Decided on March 20, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 20, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ. 7115-
7115A 114690/07

[*1]Gladis Anderson, Plaintiff-Respondent,

v

Ariel Services, Inc., et al., Defendants-Appellants.




Leahey & Johnson P.C., New York (James P. Tenney of
counsel), for appellants.
Dale Lionel Smith, New York, for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered July 19, 2010, which denied defendants' motion to dismiss the complaint and/or to preclude plaintiff from submitting evidence at trial for failure to comply with discovery orders, unanimously affirmed, without costs. Order, same court and Justice, entered December 28, 2010, which, insofar as appealed from, denied defendants' motion to strike the complaint, to strike plaintiff's third verified bill of particulars and/or to preclude plaintiff from submitting evidence at trial, unanimously affirmed, without costs.

The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they
sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]). Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require
prior leave of the court (Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800 [*2][2008]; see CPLR 3043[b]). Since discovery relating to the third surgery had not previously been
ordered, the court's direction of related disclosure, rather than sanctions, was appropriate.

M-876 Anderson v Ariel Services, Inc., et al. Motion to take judicial notice denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 20, 2012

CLERK