Gensch v Interligi

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Gensch v Interligi 2012 NY Slip Op 31165(U) April 27, 2012 Sup Ct, Suffolk County Docket Number: 09-47215 Judge: Mayer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. CAL NO. SHORT FORRI ORUC'R 09-472 15 1 1-00776MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 17 - SUFFOLKCOUI'JTY PRESENT: Hon. PETER H. MAYER Justice of t h e Supreme C o u r t GREGORY R. GENSCH and RACHEL GENSCH, MOTION DATE 8-2- I 1 MOTION DATE 8- 16- 1 1 MOTION DATE 1 1- 14- 1 1 ADJ. DATE 1-3-12 Mot. Seq. # 001 - MD # 002 - M D # 003 - XMD EDELMAI'J, KRASIN & JAYE, PLLC Attorney fc'r Plaintiffs One Old Country Road, Suite 2 10 Carle Place, New York 1 15 14 VEXFULL & GOODSTEIN Attorney for Defendant Two Robbins Lane, Suite 200 Jericho, New York 1 1753 Upon the reading and filing o f the following papers in this matter: ( I ) Not ce of MotiodOrder to Show Cause by the defendant, dated June 2 1, 20 1 1, and supporting papers (including Memorar dum of Law dated-); (2) Notice of MotioniOrder to Show Cause by the defendant, dated July 8, 201 1, and supporting papers (including Memorandum o f Law dated -): (3)Cross Motion by the plaintiffs, dated November 1 1, 20 1 1, supporting papers; (4) Affirmation in Opposition by the plaintiffs, dated June 23.20 1 1 , and supporting papers; ( 5 ) Affirmation in Opposition by the defendant, dated December 13,20 1 1, and supporting papers; (6) Reply Affirmation by the defendant, dated July 29, 201 1, and supportin,; papers; and now IJPON DlJE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that the motion (#OO 1) by defendant Jenna Interligi for leave to serve and file a late jury demand, the motion (#002) by defendant Jenna Interligi seeking summary judgment dismissing the complaint, and the cross motion (#003) by plaintiffs Gregory Gensch and Rachel Gensch for leave to amend their bill of particulars hereby are consolidated for purposes of this determination; and it is ORDERED that the motion (#001) by defendant Jenna Interligi for leave to serve and file a late jury demand is denied: and it is ORDERED that the motion (#002) by defendant Jenna Interligi seeking summary judgment dismissing the complaint is denied; and it is further [* 2] Gensch v Interligi Index No.09-472 15 Page No. 2 ORDERED that the cross motion (#003) by plaintiffs Gregory Gensch and Rachel Gensch for lealre to amend their bill of particulars is denied. without prejudice. Plaintiffs Gregorq. Gensch and Rachel Gensch commenced this action to recover damages for injuries they allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Route 1 12 and County Road 16 in the Town of Brookhaven on June 29, 2007. It is alleged that the (accident happened when the vehicle operated by defendant Jenna Interligi attempted to make a left turn onto County Road 16 and struck plaintiffs vehicle, which was traveling southbound on Route 1 12. At the time of the accident, Rachel Gensch was a passenger in the vehicle operated by her husband, Gregory Gensch. By his bill ofparticulars, Gregory Gensch alleges that Ee sustained various personal injuries as a result of the subject accident, including a partial tear of the left deltoid ligament; disc herniations at lievel C6 through T3; disc bulges at level T6 through T9; and cervical and lumbar radiculopathy. Gregory Gensch further asserts that he was incapacitated from his employment fix approximately one month By her bill of particulars, Rachel Gensch alleges that she also sustained various personal injuries as a result of the subject accident, including multiple left rib fractures, disc herniations at levels L4 through S1 and T10 through T12. and lumbar radiculopathy. Rachel Gensch further asserts that she has been totally incapacitated from her employment since the date of the accident, and that she missed approximately two days of nursing school. Defendant now moves for leave to serve and file a late demand for ajury trial pursuant to CF LR 4102 (e) on the bases that she did not evince any intention to waive a jury trial and that her failure to file for a jury trial was inadvertent. Plaintiffs oppose the motion on the ground!j that the motion was made almost three months after the note of issue was served upon defendant., the mater has already been placed on the iionjury trial calendar, and a pre-trail conference has already been held. Plaintiffs further assert that a transfer of the action from the nonjury trial calendar will result in a delayed trial, and undue prejudice to them. CPLR 4102 (a) provides that [alny party served with a note of issue not containing [a demand for a jury trial] may demand a trial by jury by serving upon each pafly a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen dajrs after service of the note of issue. However. a court may relieve a party of the effect of failing to comply with the requirements of CPLR 4 102 (a) ifno undue prejudice to the rights of another party would result (Paternoster v Drehmer, 260 AD2d 867. 870, 688 NYS2d 778 [3d Dept 19991). A party seeking an extension of the time to file a demand for a .jury trial must make a factual showing that the failure to timely file such a demand was the result of inadvertence or other excusable conduct indicating a lack of intention to waive the right to a jury trial (see Caruso, Caruso & Branda, P.C. v Hirsclz, 60 AD3d 886, 874 VYS2d 91 8 [2d Dept 20091; Fischer v RWSP Realty, LLC, 53 AD3d 595. 862 NYS2d 539 [2d Dept 20081). Defendant s application for leave to serve and file a late jury demand is denied. Defendant was served in April 201 1 with a note of issue that did not request a jury trial and, thereafter, did not timely request a trial by jury. Instead, defendant waited more than 60 days to file her demand for a jury trial. Therefore, defendant waived her rights to a jury trial (see CPLF: 41 02 (a); Lackowitz v Ct of Yonkers, 29 iy AD3d 744. 813 NYS2d 912 [2d Dept 20061; Villalbrr v Citibank (S.D.), N.A., 271 AD2d 601, 707 NYS2d 33 1 12d Dept 20001; Paternoster v Drelzmer, supra). Defendant s excuses that clerical error caused [* 3] Gensch v Interligi Index h o.O9--!72 1 5 Page N o . 3 counsel to overlook the fact that plaintiffs note of issue did not request a jury trial. and that counsel tried to file a jury demand on June 14. 201 1, but it was rejected as untimely, are inadequate (see Cnruso, Caruso & Branda, P.C. v Hirsclt. stlpra; Sumba v Sampaio. 44 AD3d 648. 841 NYS2d 891 [2d Dept 20071; Matter ofBosco, 141 AD2d 639, 529 NYS2d 541 [2d Dept 191181). Defendant also moves for summary judgment in her favor as to the personal injury claim of plaintiff Gregorq, Gensch (hereinafter referred to as . plaintiff ), arguing that the njuries he sustained as a result of the collision fail to meet the serious injury threshold requirement of Insurance Law 4 5 102(d). In ,support of the motion, defendant submits copies of the pleadings, plaintiffs deposition transcript, and the sworn medical reports of Barry Katzman, M.D., Chandra Sharma, M.D., and Audrey Eisenstadt, M.D. At defendant s request, Dr. Katzman conducted an independent ofl hopedic examination of plaintiff and Dr. Sharma conducted an independent neurological examination of plaintiff in October 201 0. Also, at defendant s request, Dr. Eisenstadt performed an independent radiological review of the magnetic resonance imaging ( MRI ) films of plaintiffs cervical and thoracic spine, and his left ankle performed in September 2007. It has long been established that the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (Dufel v Green, 84 NY2d 795, 798,622 PJ YS2d 900 [ 19951; see Toure v Avis Rent A Car Sys., 98 NY2d 345. 746 NYS2d 865 [2002]). Therefore, the determination of whether or not a plaintiff has sustained a serious injury is to be made by the court in the first instance (see Licari v Elliott, 57 NY2d 230,455 NYS2d 5 70 [1982]; Porcnno v Lehman, 255 AD2d 430,680 NYS2d 590 [2d Dept 19881; Nolan v Ford, 100 AD2d 579,473 NYS2d 516 [1984], aff d 64 NYS2d 68 1,485 NYS2d 526 [2d Dept 19841). Insurance Law 4 5 102 (d) defines a serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential liinitation of use of a body organ or member; significant liinitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or hipairment. .4 defendant seeking summary judgment on the ground that a plaintiff s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of es1.ablishing a prima facie case that the plaintiff did not sustain a serious injury (see Toure v Avis Rerzt A Car Sys., supra; Caddy v Eyler, 79 NY2d 955, 582 NYS2d 990 [1992]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant s own witnesses, those findings must be in admissible form, 1 such as], affidavits and affirmations, and not unsworn reports to demonstrate entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, 270, 587 NYS2d 692 [2d Dept 19921). A defendant may also establish entitlement to summary judgment using the plaintiffs deposition tesi.irnony and medical reports and records prepared by the plaintiffs own physicians (see Fragmle v Geiger, 288 AD2d 43 1,733 NYS2d 901 [2d Dept 20011; Grossman v Wrigr zt,268 AD2d 79, 707 NYS2d 233 [2d Dept 20001: Vignola v Varriclzio, 243 AD2d 464, 662 NYS2d 83 1 [2d Dept 19971; Torres v Micheletti, 208 AD2d 51 9,616 NYS2d 1006 [2d Dept 19941). Once a defendant has met this burden, the plaintiff must [* 4] Gensch v Interligi Index No.09-372 1 5 Page N o . 3 then submit ob,jective and admissible proof of the nature and degree o f t he alleged injury in order to meet the threshold of the statutory standard for serious injury under New York s No-Fault Insurance Law (see Dufel v Green. strpru: Tornabene v Pawlewski, 305 AD2d 1025, 758 NYS2d 593 [4th Dept 20031: ,Pagan0 v Kingsbury, ttipi~z). Based upon the adduced evidence, defendant established her prima facie burden that plaintiff did not sustain a serious injury within the meaning of the Insurance Law as result of the subject accident (see Toure v Avis Rent A Car Sys., supra; Gaddy v Eyler, supra; Al-Klzilwei v Truman. 82 AD3 d 102 1, 9 19 NYS2d 361 [2d Dept 201 11; Pierson v Edwards, 77 AD3d 642,909 Nk S2d 726 [2d Dept 20101; Young Hwan Park v Orellana, 49 AD3d 721, 854 NYS2d 447 [2d Dept 20081: Cooper v LI Constr., Inc., 45 AD3d 623, 845 NYS2d 454 [2d Dept 20071). Defendant s examining orthopedist, Dr. Katzman, tested the ranges of motion in plaintiffs spine, shoulders, and left ankle using a gclniometer and set forth his specific measurements, and compared plaintiffs ranges of motion to the normal ranges (see Cnntave v Gelle. 60 AD3d 988,877 NYS2d 129 [2d Dept 20091; Staffv Yslzua, 59 AD3d 61 4, 874 NYS2d 180 [2d Depr. 20091). Dr. Katzman states in his medical report that an examination of plaintiff reveals that he has hill range of motion in his spine, shoulders and left ankle. Dr. Katzman opines that the strains plaintiff sustained to his spine, right shoulder, and left ankle as a result of the subject collision have resolved, that he is not disabled, and that he is capable of performing his normal daily living activities. Moreover, the limitation in plaintiffs range of motion in his left ankle noted by Dr. Katzman, i.e. 15 degrees lateral flexion (20 degrees is normal), is insignificant within the meaning of Insurance Law 5 5 102(d) (see Licari v Elliot, supra; Lively v Fernandez, 85 AD3d 98 1, 925 NYS2d 650 [2d Dept 201 11). Likewise, defendant s examining neurologist, Dr. Sharma, states in her medical report that plaintiff has full range of motion in the cervical and lumbar regions of his spine, that he is able to place his right foot on his left knee and his left foot on his right knee, and that the sprains to his spine have resolved. Also, Dr. Sharma states that plaintiffs neurological examination was normal, that he does not have a neurological disability, and that there are no neurological manifestations of disc bulges or herniations. In addition, defendant s reviewing radiologist, Dr. Eisenstadt, ste.tes in her medical report that a review of plaintiffs left ankle MRI examination reveals that no bone contusions, fractures or osteochondral defects were identified. Dr. Eisenstadt states that an MRI of plaintiffs 11:ft ankle is normal. Furthermore, Dr. Eisenstadt states that the MRI examinations of plaintiffs thoracic and cervical spine reveal that he suffers from degenerative disc disease in the areas where he alleges to have sustained his injuries, which are preexisting in nature. and are not causally related to the subject accident (see Kreimerman v Stunis, 74 AD3d 753. 902 NYS2d 180 [2d Dept 2010]; Depena vSyl/a, 63 AD3d 504, 880 NYS2d 641 [lst Dept 20091, lv denied 13 NY3d 706, 887 NYS2d 4 [2009]; Vafentin v Pomi//a. 59 AD3d 184, 873 NYS2d 537 1 1st Dept 20091). Therefore, defendant has shifted the burden lo plaintiff ti3 come forward with evidence in admissible lbrm to raise a material triable issue of fact as to whether he sustained an injury within the meaning of the Insurance Law (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380 [2005]; see generally Zuckeriwan v CitjJof New York. 49 NY2d 557, 427 NYS2d 595 119801). A plaintiff claiming a significant limitation of use of a body function or system must substantiate his or her coinplaints with objective medical evidence showing the extent or degree of the limitation caused by the in.jury and its duration (see Ferraro v Ridge Car Serv.. 49 AD3d 498,854 NYS2d 408 [2d Dept 20081; Mejia v DeRose, 35 AD3d 407.825 NYS2d 772 [2d Dept 20061; Laruffa v Yui Ming Lau, 32 AD3d 996, 82 1 NYS2d 642 [2d Dept 20061; Kearse v New [* 5] Gensch \ Interligi Index No.09--47215 Page No 5 York C @ Tr. ,41~?/2., AD3d 45, 789 NYS2d 28 1 [2d Dept 20051). Whether a limitation of use or i 16 function is -significant or consequential (i.e. important . , .), relates to medical significance and involves a comparative determination of the degree or qualitative nature j ~ an injury based on the normal function, f purpose and use of the body part (Dufel v Green. szipru at 798 1, To prove the extent or degree of physical liniitation with respect to the limitations of use categories, either ob.jective evidence of the extent, percentage o r degree of the limitation or loss of range of motion and its duration based on a recent examination ofthe plaintiff must be provided or there must be a sufficient description of the qualitative nature of plaintiff s limitations, with an objective basis, correlating plaintiff s limitations to the normal function, purpose and use ofthe body part (see Perf v Meher, 18 NY3d 208, 936 NYS2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc.. supra at 350; see also Valera v Singh, 89 AD3d 929, 923 hYS2d 530 [2d Dept 201 l];Rovelov Volcy, 83 AD3d 1034, 921 NYS2d 322 [2d Dept 201 11) A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute (see Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 [I 9821). However. evidence of contemporaneous range of motion limitarions is not a prerequisite to recovery (see Per1 v Meher, supra; Paulino v Rodriguez, 91 AD3d 559, 937 NYS2d 198 [ l st Dept 20121). Plaintiff opposes the motion on the grounds that defendant failed to meet her prima facie burden of establishing that he did not sustain a serious injury as a result of the subject accident. He contends that he sustained injuries within the limitations of use categories and the 90/180 category of the Insurance Law as a result of the collision. In opposition to the motion, plaintiff submits the sworn affidavits of Nunzio Saulle, M.D.. John Rigney, M.D., and John Rigney, M.D., his certified rnedical records, and his own affidavit . Plaintiff. in opposition to defendant s prima facie showing, has come forward with evidence in admissible form sufficient to raise a triable issue of fact as to whether he sustained a serious injury wilhin the meaning of the Insurance Law as a result of the subject accident (see Pommells v Perez., supra; Purdie v Perdorno, 91 AD3d 929,937 NYS2d 631 [2d Dept 20121; Hurris v Boudart, 70 AD3d 643,893 NYS2d 63 1 [2d Dept 201 01). The medical reports submitted by plaintil f in opposition to the motion indicate Ihat he had significant range of motion limitations in his cervical, thoracic arid lumbar spine contemporaneous with the accident, and that those significant limitations were still presenl when plaintiff was re-examined on October 24. 201 1, more than four years post accident. Plaintiffs experts opine that his symptoms are permanent, that his prognosis is guarded, and that he has been advised to continue his home exercise program of stretching and strengthening in order to prevent any significant worsening of his symptoms. Therefore, plaintiff has submitted objective medical proof demonstrating that he sustained significant range of motion limitations in the cervical and thoracolumbosacral regions of his spine as a result of the sub-ject accident (see Per1 v Meher, supra; Kanarad v Setter, 87 AD3d 714, 928 NYS2d 782 [2d Dept 201 11; Kliairnov v Armrinious, 85 AD3d 978. 925 NYS2d 623 (2d Dent 20 I I]; Jifani v Palmer, 83 AD3d 786, 920 NYS2d 424 [2d Dept 201 11). I n addition, the affirmed medical report of Dr. Rigney slates that an MRI examination of plaintiff s left ankle reveals a small sliver-like opacity of bone density lying above the anterior talus, which is consistent with a small cortical avulsion fracture. Dr. Rigney slates that a ganglion cyst along the lateral aspect of the talonavicular articulation is present in plaintiff-s left ankle, and that plaintiff also sustained a partial tearing of the deltoid ligament, and posterior tibial tendon tenosynovitis. Dr. Rigney opines that the injuries to plaintift s left ankle are causally related to the subject accident. [* 6] Thus. the affirmed medical reports of plaintift s experts conflict Tuith those of defendant s experts, who found that plaintiff did not sustain a fracture to his left ankle and that the sprains that plaintiff sustained in the subject accident were resolved. Where conflicting rnecical evidence is offered on the issue of. whether a plaintiffs injuries are permanent or significant, and wrying inferences may be dra.wn, the question is one for the jury (Noble v Ackerman, 252 AD2d 392,39 5.675 NYS2d 86 [l st Dept 19981; see Johnson v Garcia. 82 AD3d 561. 919 NYS2d 13 [lst Dept 201 11; LaMasa v Bachman, 56 AD3d 340, 869 NYS17 [lst Dept 2008): Ocasio vZorbas, 14 AD3d 499. 789 NYS:!d 166 [2d Dept 20051; Reynolds v Burgliezi. 227 AD2d 941. 643 NYS2d 248 [4th Dept 19961). Moreover, where [a] plaintiff establishes that at least some of his injuries meet the no-fault threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand [defendant s] motion for summary judgment (Linton v Nawaz, 14 NY3d 821, 822, 900 NYS2d 239 [2010]; see Rubin v SMS Taxi Corp., 71 AD3d 548. 898 NYS2d 110 [lst Dept 20101). Accxdingly, defendant s motion for summary judgment dismissing the complaint is denied. Plaintiffs cross-move to amend their bill of particulars to include that Gregory Gensch sustained a fracture of talus and navicular as a result of the subject accident. In support of the cross motion, plaintiffs submit copies of the pleadings and a copy of the original verified bill of particulars. Defendant opposes the cross motion on the basis that plaintiffs filed their note of issue on April 1 1, 20 1 1, and that she will be significantly prejudiced by allowing plaintiffs to include the fracture of talus and navicular allegation in their bill of particulars. In particular, defendant asserts that because the left ankle X-ray report from Brookhaven Hospital stated that there was no evidence of a fracture or dislocation, and that the left ainkle joint was maintained, no further action was taken to investigate the left ankle fracture. In opposition to the cross motion, defendant submits excerpts of Gregory Gensch s depositicn transcript, unsworn copies of Gregory Gensch s medical reports, and a copy of a stipulation dated December 5,20 11, between counsel adjourning the motions on consent to January 3,2012. Plaintiffs application to amend their bill of particulars to include an allegation of fracture of-talus and navicular is denied. CPLR 3025 (b) states, in pertinent part, that a party may amend his or her pleading at any time by leave of court or by stipulation of all parties, and that leave shall be freely given upon such terms as may be just (see Edenwald Corztr. Co. v CiQ oflveu York,60 NY2d 957,471 NYS2d 55 [1983]; Green v Passenger Bus Corp., 61 AD3d 1377; 877 IVYS2d 577 [4th Dept 20091). Moreover, the decision whether to grant leave to amend a pleading is comrnitted solely to the discretion of the court (see Murray v City o New York. 43 NY2d 400,401 NYS2d 773 [ 19771; Anderson v Nottinglzam Vil. f Honzeowner s Assn., I m . , 37 AD3d 1195, 830 NYS2d 882 [4th Dept 20071). Leave to amend a pleading will be granted so long as it does not prejudice the nonmoving party and where the amendment is no1 patently lacking merit (,we McF arland vMic/zel, 2 AD3d 1297. 770 NYS2d 544 (4th Dept 20031; Letterman v Reddington, 278 AD2d 868, 718 NYS2d 503 [2000]). Also, it is a well-established rule that * thelegal sufficiency or merits of a proposed amendment of a pleading will not be examined on the motion to amend unless the insufficiency or lack of merit is clear and free from doubt (see Goldstein v BroJpn Cadilluc Oldsmobile Corp.. 90 AD2d 512, 455 NYS2d 19 (19821; De Forte v Allstate Ins. Co., 66 AD2d 1028, 41 1 NYS2d 726 [1978]; see ulso Siegel, Practice Commentaries, McKinney s Cons Laws ofhlU, Book 7B, CPLR 3205). In addition, a defendant must establish prejudic: by showing that the defendant - has been hindered in the preparation of [its] case or has been prevented from taking some measure i n support of (its] position (Loomis v Civettcr Corinno Constr. Corp., 54 NY2d 18, 23, 444 NYS2d 571 [ 19811; see Wlzalen vKawasakiMotors Corp., 92 NY2d 288, 680 NYS2d 435 [1998]; Vcrldes vMa,rbrose [* 7] Crensch v lnterligi Index N0.O~l-172 15 Page No. 7 Realty. 289 AD2d 28. 734 NYS2d 24 [lst Dept 2001]). However. the court should consider how long the party seeking the amendment was aware of the facts upon which the rnolion is predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted from such delay (see Morris v Queens Long Is. Med. Group., P.C., supra; Colien v Ho, 38 AD3d 705 833 NYS2d 542 [2d Dept 20071; see ulso Kyong Hi Wohn v County o Suffolk. 237 AD2d 412, 654 NYS2d 826 [2d Dept 20031; Volpe v f GoodSamaritan Hosp.. 213 AD2d 398, 623 NYS2d 330 [2d Dept 19951). Likewise, 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 o f New York, 57 AD3d 881,884,870 NYS2d 438 [2d Dept 20081). In the instant matter, plaintiffs have failed to include a copy of their amended bill of particulars with their moving papers. Thus, plaintiffs have failed to support their motion with any evidentiary proof or to o show that their proposed amendment has merit (see Kilkenny v Law 08:f Cushner & Garvey, LLA? 76 AD3d 512,905 NYS2d 661 [2d Dept 20101; Ferdinand v Creccn & Bl&, 5 AD3d 538,774 NYS2cL 714 [2d Dept 20041, Iv denied 3 NY3d 609, 786 NYS2d 812 [2004]; Farrell v K.J.D.E. Corp., 244 AD2d 905, 645 NYS2d 201 14th Dept 19971; cJ: Dever v DeVito, 84 AD3d 1539, 922 NYS2d 646 [3d Dept 201 I]; Manning v Tltorne, 73 AD3d 1136,900 NYS2d 900 [2d Dept 20101; Parametric Capital Mgr., LLC v Lnclzer, 33 AD3d, 376, 822 NYS2d 60 [lst Dept 20061). Accordingly, plaintiffs motion for leave to amend their bill ofparticulars is denied. -- . / - \ I

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