Wolfer v 184 Fifth Ave. LLC
Annotate this CaseDecided on February 14, 2005
Supreme Court, New York County
Jacquelyn Wolfer and Scott Winston, Plaintiffs,
against
184 Fifth Ave. LLC et al., Defendants.
108493/02
Marylin G. Diamond, J.
This is a personal injury action arising out of an incident which occurred on December 10, 2001 of a building located on Fifth Avenue in Manhattan. The injured plaintiff, Jacquelyn Wolfer, alleges that she fell on a temporary walkway comprised of wooden planks as she was walking across the lobby.
Plaintiffs commenced this action on April 8, 2002 against the owner of the building, its management company and two contractors. On December 15, 2002, plaintiffs served a verified bill of particulars which alleged various injuries to Ms. Wolfer, including a "right lateral femoral cutaneous neuropathy" and a possible pelvic fracture. Upon the completion of all depositions and physical examinations, plaintiffs filed a note of issue on September 15, 2003. The case appeared on the court's trial calendar several times but was adjourned on each such occasion. In September, 2004, plaintiffs retained new counsel and a trial date was fixed for October 4, 2004. On that date, one of the attorneys for the defendants requested an adjournment due to a family medical emergency. The court granted the adjournment and advised all counsel that the case would be marked final for jury selection on October 25, 2004. On that same date, October 4, 2004, plaintiffs' trial counsel for the first time advised the court that he needed to exchange further discovery in order to adequately prepare his case. The court advised all counsel that discovery was complete and that no further documentary exchanges would be permitted.
Despite this court's clear instructions, plaintiffs, on October 6, 2004, attempted to serve defendants with what they termed a "supplemental" bill of particulars. Plaintiffs also attempted to serve two expert exchanges pursuant to CPLR §3101(d). On October 14, 2004, plaintiffs attempted to serve defendants with a third expert exchange and a second supplemental bill of particulars. All of these documents were rejected by the defendants. On that same date, plaintiffs' counsel submitted a letter to Justice Ira Gammerman, to whom the case had been assigned for trial, requesting an [*2]adjournment of the trial due to Ms. Wolfer's upcoming hip surgery which, plaintiffs claimed, had been scheduled on an emergency basis. The request was granted and the trial was postponed.
Plaintiffs now move for an order (1) granting leave, pursuant to CPLR §3043(b), to serve a further supplemental bill of particulars concerning Ms. Wolfer's recent hip surgery, (2) compelling defendants to accept the first and second supplemental bills of particulars or, alternatively, granting them leave, pursuant to CPLR §3042(b), to serve these two bills of particulars nunc pro tunc, (3) compelling defendants to accept plaintiffs' CPLR §3101(d) expert exchanges and (4) granting plaintiffs a "sufficiently lengthy and appropriate adjournment" of the trial of this action or, in the alternative, marking the case off the trial calendar. In addition to opposing plaintiffs' motion, the defendants have cross-moved for an order precluding plaintiffs from serving any of the additional discovery responses and from relying at trial on any of the information contained in these responses.
Discussion
1. Bills of Particulars - CPLR §3043(b) provides that a party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at anytime, but not less than 30 days prior to trial, and provided that no new cause of action may be alleged or new injury claimed. Defendants correctly point out that plaintiffs have violated this provision in two ways: by serving their supplemental bills of particulars less than 30 days prior to the scheduled trial date and by alleging new injuries. A review of the bills of particulars clearly shows that plaintiffs have alleged not only the need for a future surgery and hip replacement, but new physical and psychological injuries to Ms. Wolfer, such as depression and traumatic brain injury. Moreover, they seek additional economic damages based on the alleged lost profits of two businesses which Ms. Wolfer claims she can no longer operate. As a result of these alleged business losses, plaintiffs seek to amend their damages from $50,000 to a loss "of at least $5,000,000." Clearly, plaintiffs' new bills of particulars reflect an attempt not to supplement their previous bills but, rather, to amend the bills. As such, they require leave of court under CPLR 3042(b).
It is well settled that while leave to amend a bill of particulars should ordinarily be freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised in a "discreet, circumspect, prudent and cautious manner." Smith v. Plaza Transp. Ambulance Serv., 243 AD2d 555 (2nd Dept. 1997). See also Fuentes v. City of New York, 3 AD3d 549, 550 (2nd Dept. 2004); Licht v. Transp. Care NY, 3 AD3d 325, 326 (1st Dept. 2004); Kassis v. Teacher's Insurance & Annuity Assoc., 258 AD2d 271, 272 (1st Dept. 1999); Kyong Hi Wohn v. County of Suffolk, 237 AD2d 412, 412-13 (2nd Dept. 1997). Here, defendants would clearly be prejudiced by permitting plaintiffs to serve two amended bills of particulars less than thirty days before trial and over a year and a half after the note of issue was filed. Moreover, the court notes that the amendments were initially served soon after this court had ruled, over the strong objections of plaintiffs' new counsel, that the case be set down for trial on October 25, 2004 and that there would be no further discovery or documentary exchanges.
In addition, where, as here, there has been an inordinate delay in seeking leave to amend a [*3]bill of particulars, a plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of any proposed amendment. See Fuentes v. City of New York, 3 AD3d at 550; Light v. Trans. Care NY, 3 AD3d at 326; Kassis v. Teacher's Insurance & Annuity Assoc., 258 AD2d at 272. Plaintiffs, however, have failed to offer any reasonable explanation for waiting until the eve of trial, and more than a year and a half after the filing of the note of issue, before alleging numerous new injuries, further surgery and new economic damages. Plaintiffs' attorney asserts that the true extent of the injuries to the right hip could only be diagnosed recently due to the complexity of the condition. The court finds that this assertion is not credible and that, in any event, is not supported by any admissible evidence such as medical records or a physician's affidavit stating that the surgery on Ms. Wolfer's right hip was made necessary because of the injuries she suffered in the December 10, 2001 accident. See Fuentes v. City of New York, 3 AD3d at 550. Plaintiffs have also failed to submit an affidavit from an accountant or an economist which demonstrates that, as the result of her being unable to operate two businesses, Ms. Wolfer has suffered economic damages of at least $5 million. Under the circumstances, plaintiffs should not be permitted to amend their bill of particulars and should be precluded at trial from introducing into evidence or relying upon any of the information contained in the proposed amended bills of particulars.
2. Expert Exchanges - CPLR §3101(d)(1)(i) provides, inter alia, that "where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from offering the expert's testimony at the trial solely upon grounds of noncompliance with this paragraph."(emphasis supplied). In construing this provision, the courts have concluded that this same result should obtain where a party has retained an expert a sufficient period of time before the trial but does not produce an expert exchange until the eve of trial, provided that the opposing party was otherwise previously aware that the expert had been retained, knew the gist of the expert's position and suffered no prejudice by reason of the late exchange. See Sr. Hilaire v. White, 305 AD2d 209 (1st Dept. 2003).
Here, plaintiffs waited until over a year and half after the note of issue was filed before serving defendants with three expert witness exchanges. The first exchange, dated October 6, 2004, named Dr. Allen H. Lebovits as an expert witness at trial. Dr. Lebovits is, however, one of the Ms. Wolfer's treating psychologists, a fact which was disclosed to defendants in 2002. Defendants do not dispute that plaintiffs provided medical records and authorizations for Dr. Lebovits in accordance with the applicable court rules governing exchange of medical information. As such, the disclosure requirements of CPLR §3101(d)(1)(I) do not apply to Dr. Lebovits if he were to provide expert testimony at trial. See Finger v. Brande, 306 AD2d 104 (1st Dept. 2003); Overeem v. Neuhoff, 254 AD2d 398, 400 (2nd Dept. 1998). The plaintiffs' failure to provide an expert exchange report for Dr. Lebovits prior to the eve of trial was therefore not improper. The second exchange, also dated October 6, 2004, named Dr. Todd R. Schlifstein as an expert witness. Dr. Schlifstein is also one of Ms. Wolfer's treating physicians and his records were also provided to defendants. Thus, plaintiffs were not under any obligation to provide an expert witness exchange prior to his testimony at trial.
The third expert exchange, dated October 14, 2004, was for Denise Bekaert, a forensic [*4]engineer. Plaintiffs have acknowledged that they did not retain Ms. Bekaert until the eve of trial, in October, 2004. Although they have had ample opportunity to do so, plaintiff s have failed to offer any explanation, much less demonstrate good cause, for their failure to retain and disclose an engineering expert until three weeks before the final trial date. Moreover, the expert disclosure of Ms. Bekaert greatly expands the plaintiffs' theories of liability in this case to include violations of the Building Code and various acts of negligence by the defendants, none of which had been previously alleged. Plaintiffs' inexcusably belated service, on the eve of trial, of an expert exchange naming a new expert who intends to testify in support of newly-raised liability theories cannot, in the interests of justice and fairness, be countenanced. See Lissak v. Cerabona, 10 AD3d 308, 309 (1st Dept. 2004); Kassis v. Teachers Ins. & Annuity Assn., 258 AD2d at 272. Since it compromises their ability to prepare for trial adequately, the exchange is clearly prejudicial to the defendants.
Plaintiffs, however, argue that because Justice Gammerman adjourned the trial to January 19, 2005, a date which has since been adjourned pending the determination herein, defendants have had adequate time to prepare for trial. The problem with this argument is that the case was not adjourned until after plaintiffs served their amendments and expert exchanges. They did so almost three years after the action had been commenced, one year after the note of issue had been filed and after a number of trial adjournments had been granted. Moreover, the expert exchange naming Ms. Bekaert for the first time was served in direct defiance of this court's clear instructions. Under the circumstances, the fact that the trial was subsequently adjourned does not excuse or mitigate plaintiffs' conduct. Nor does it significantly lessen the prejudice to defendants given the extensive discovery that would need to take place were plaintiffs' submissions recognized. The court therefore concludes that the expert disclosure of Denise Bekaert was not timely exchanged and that plaintiffs should be precluded from calling her at trial as an expert witness.
3. Adjournment - Plaintiffs have also moved for an adjournment of the trial to a date no earlier than May, 2005 on account of Ms. Wolfer's health. Plaintiffs argue that Ms. Wolfer needs time to recuperate from her recent hip surgery. Although plaintiffs have not offered any evidence, such as an affidavit from a physician, which supports their claim that Ms. Wolfer needs additional time to recuperate, the court is nevertheless persuaded that the trial of this case may be adjourned one last time.
The parties shall therefore appear before the court in Room 412, 60 Centre Street, New York, New York on March 29, 2005 at 10:00 a.m. to pick a trial date. The case will be marked final for the date so picked and the court will not entertain or permit any further adjournments by either party. If the plaintiffs fail to appear on the scheduled trial date or are otherwise unable to proceed to trial, this action shall be dismissed with prejudice. If the defendants fail to appear on the scheduled trial date or are otherwise unable to proceed to trial, they will be held in default and the court will proceed with a trial to assess damages.
Accordingly, plaintiffs' motion is granted to the extent that they are hereby permitted to serve and rely upon the expert witness exchanges of Dr. Lebovits and Dr. Schlifstein. Moreover, one final adjournment of the trial is permitted. The motion is otherwise denied. Defendants' cross-motion is [*5]granted to the extent that plaintiffs are not permitted to further amend their bill of particulars and are precluded from introducing into evidence or relying at trial upon any of the information contained in the proposed amended bills of particulars. Plaintiffs are also precluded from calling Denise Bekaert as an expert witness. The cross-motion is otherwise denied.
ENTER ORDER
Dated: February 14, 2005 _______________________
MARYLIN G. DIAMOND, J.S.C.
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