Hajcuk-Gillespie v King

Annotate this Case
Download PDF
Hajcuk-Gillespie v King 2017 NY Slip Op 31032(U) April 17, 2017 Supreme Court, Suffolk County Docket Number: 13-32495 Judge: W. Gerard Asher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 13-32495 l 5-00657MV CAL. No. SHORT FORM ORDER SUPREME COURT- STATE OF NEW YORK l.A.S. PART 32 - SUFFOLK COUNTY PRESENT: Hon. W. GERARD ASHER Justice of the Supreme Court MOTION DATE 4-28-16 (005) MOTION DATE 6-14-16 (006} ADJ. DATE 9-27-16 Mot. Seq. # 005 - MD # 006-Mot D -------------------------------------------------------------X SHARRIE HAJCUK-GILLESPIE and TAYLOR HAJCUK, an infant by her mother and natural guardian, SHARRIE HAJCUK-GILLESPIE, and MICHAEL GILLESPIE, SILBOWITZ, GARAFOLA, SILBOWITZ, SCHATZ & FREDERICK, LLP Attorney for Plaintiffs 25 West 43rd Street, Suite 711 New York, New York 10036 Plaintiffs, - against DYLAN KING, KAREN M. DUNPHY, KARIN A. KING, and THOMAS RYAN DUNPHY, PICCIANO & SCAHILL, P.C. Attorney for Defendants 900 Merchants Concourse, Swte 310 Westbur}r, New York 11590 Defendant~. ---------------------------------------------------------------)( Upon the following papers numbered I to 1l_ read on these motions to compel and to strike supplemental bill of particulars ; Notice of Motion/ Order to Show Cause and supporting papers 1 - l 0: 21-31 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 11-20: 32-35 ; Replying Affidavits and supporting papers _ _; Other_; (and aftc1 hem ing eoamcl in suppo1t and opposed to the motion) it is, ORDERED that the motions (#006 and #007) by the defendants Dylan King and Karin King hereby are consolidated for the purposes of this determination; and it is [* 2] Hajcuk-Gillespie Index No. 13-32495 Page2 ORDERED that the motion by the defendants Dylan King and Karin King for, inter alia, an order compelling the plaintiffs to produce the items requested in their discovery demand is denied; and it is further ORDERED that the motion by the defendants Dylan King and Karin King for, inter alia, an order striking the plaintiffSharrie Hajduk-Gillespie's supplemental bill of particulars is decided as follows. The plaintiff Sharrie Hajduk-Gillespie, s/h/a Sharrie Hajcuk-Gillespie, commenced this action on behalf of herself and her daughter, the infant p laintiff Taylor Hajduk, to recover damages for injuries they allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Express Drive North and Ocean A venue in the Town of Islip on May 15, 2013. It is alleged that the accident occurred when the vehicle operated by the defendant Dylan King and owned by the defendant Karin King proceeded into the aforementioned intersection against a red traffic light striking the plaintiff Hajduk-Gillespie's vehicle. Following the impact between the King and Hajduk-Gillespie vehicles, the Hajduk-Gillespie vehicle allegedly was struck by the vehicle operated by the defendant Karen Dunphy and owned by the defendant Thomas Dunphy. 1 At the time of the accident, the infant plaintiff Hajduk was riding as a front seat passenger in the Hajduk-Gillespie vehicle. In addition, the plaintiff Hajduk-Gillespie's husband, Michael Gillespie, instituted a derivative claim for loss of consortium. The defendants now move for an order compelling the plaintiffs to respond to their letter, dated January 25, 2016, demanding the production of outstanding discovery items. In particular, the defendants are seeking authoriz.ation to obtain the medical records related to the plaintiff HajdukGillespie pregnancy and birth of her youngest child, which occurred subsequent to the subject accident, and authorization to obtain the tax returns ofthe plaintiffs for the years 2009 through 2014. The defendants contend that the plaintiff Hajduk-Gillespie's medical records may reveal that her pregnancy was the cause of her spinal limitations and not the subject accident, as well as whether her pregnancy exacerbated or re-injured her alleged cervical and lumbar spine injuries. The defendants further assert that the plaintiff Hajduk-Gillespie, who is making a claim for loss of earnjngs, failed to state at her examination before trial that she filed for bankruptcy in 2009. In addition, the defendants seek an order compelling the plaintiff Michael Gillespie to appear for an examination before trial. The plaintiffs oppose the motion on the grounds that the defendants cannot rely on the same post-note discovery demand letter as their affirmation of good fa ith, that defendants have failed to make the requisite showing of unusual or unanticipated circumstances arising subsequent to the filing of the note of issue to warrant post-note of issue discovery, and that the 1 By order of the undersigned dated October 29, 2015, the defendants Karen Dunphy and Thomas Dunphy' s motion for summary judgment dismissing the complaint was granted, and the action was severed as against them. [* 3] Hajcuk-Gillespie Index No. 13-32495 Page 3 defendants ' discovery demands are improper. 22 NYC RR §202. 7 (a) of the Uniform Rules of Trial Courts states that a motion relating to disclosure must be supported by an affi rmation that counsel "has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." In addition, the affirmation of good-faith effort "shall indicate the time, place, and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held" (see Uniform Rules for Trial Courts [22 NYCRR] §202.7 [c]). Furthermore, the fili ng of the note of issue and certificate of readiness certifies that all discovery is complete, waived or not required, and that the action is ready for trial, foreclosing further discovery (see 22 NYCRR § 202.21[b]; Tirado v Miller, 75 AD3d 153, 901 NYS2d 358 [2d Dept 2010J). Once the note of issue has been filed, any further pretrial disclosure is only allowed upon a showing of "unusual or unanticipated circumstances" and "substantial prejudice" (see A rons v Jutkowitz, 9 NY3d 393, 850 NYS2d 345 (2007]; Jones v Gra11d Opal Constr. Corp., 64 AD3d 543, 883 NYS2d 253 (2d Dept 2009]; James v New York City Tr. Autlt., 294 AD2d 471 , 742 NYS2d 855 [2d Dept 2002]). Under the instant circumstances, the defendants have failed to demonstrate the existence of unusual or unanticipated circumstances that developed subsequent to the filing of the note of issue, which requires additional pretrial proceedings to prevent substantial prejudice to their case (see 22 NYCRR § 202.2 1[e]; WigandvModlin, 82 AD3d 1213, 919NYS2d 868 [2d Dept2011]; Owen v Lester, 79 AD3d 992, 9 15 NYS2d 277 r2d Dept 20 l OJ). Additionally, the affirmation of good faith submitted with the defendants ' motion papers is insufficient, since it fails to adequately detail their efforts to resolve the issues raised by the instant motion (see Cestaro v Chin, 20 AD3d 500, 799 NYS2d 143 (2d Dept 2005]; Barnes v NYNEX, Inc. , 274 AD2d 368, 711 NYS2d 893 (2d Dept 2000]). Moreover, litigants do not have carte blanche to demand production of documents they speculate might contain useful information (see Geffner v Mercy Med. Ctr., 83 AD3d 1283, 922 NYS2d 470 [2d Dept 201 1]; Buxbaum v Castro, 82 AD3d 925, 925, 919 NYS2d 175 [2d Dept 201 1]). A disclosure request will be considered palpably improper where it is determined that such information is privileged, irrelevant to the issues in the case, vague or overly broad, and~ therefore, exempt from disclosure (see Farkas v Ora11ge Regional Med. Ctr. , 97 AD3d 720, 948 NYS2d 651 [2d Dept 2012]; Velez v South Nine Realty Corp., 32AD3d1017, 822 NYS2d 86 [2d Dept2006]). Furthermore, the production of tax returns generally are disfavored due to their confidential and private nature (see Altidor v State-Wide Ins. Co., 22 AD3d 435, 801 NYS2d 545 [2d Dept 2005]). Thus, a party seeking to compel the production of tax returns must make a strong showing of necessity and demonstrate the inability to obtain the information contained in the returns from other sources (see Williams v New York City Hous. A utlt. , 22 AD3d 315, 802 NYS2d 55 [1st Dept 2005]; Samide v Roman Catholic Diocese of Brooklyn, 5 AD3d 462, 773 NYS2d 116 (2d Dept 2004]). [* 4] Hajcuk-Gillespie index No. 13-32495 Pagc4 Here, the defendants have failed to demonstrate a strong showing of necessity to justify the disclosure of the plaintiff Hajcuk-Gillespie's tax returns from 2009 through 2014 (see Katz v Castlepointlns. Co. , 121 AD3d 948, 995 NYS2d 131 (2d Dept 2014]; cf Kerman v Friedman, 2 1 AD3d 997, 80 l NYS2d 387 [2d Dept 2005]). More importantly, the fact that the plaintiff HajdukGillespie filed for bankruptcy in the year 2009 is not material or relevant to the issues in this matter, and, therefore, the request of the release of her tax returns for the requested years was palpably improper and completely unnecessary to the defense of this action (see CPLR 310 l [a]; Panasuk v Viola Park Realty, LLC, 41 AD3d 804, 83 9 NYS2d 520 (2d Dept 2007]; Manzella v Provident Life & Cas. Co., 273 AD2d 923, 709 NYS2d 772 r4th Dept 2000]). The defendants also move for an order, pursuant to CPLR 3042, striking plaintiffs' supplemental biJJ of particulars, dated April 11 , 20 16, arguing that it alleges new injuries to the plaintiff Hajduck-Gillespie's cervical spine, lumbar spine, and left wrist, and includes a new allegation of Reflex Sympathetic Dystrophy of the lower extremities. Alternatively, the defendants seek to compel the plaintiff Hajduck-Gillespic to appear for a further examination before trial and further independent medical examinations, along with providing authorizations for the release of her medical records regarding the additional injuries alleged in the supplemental bill of particulars. The plaintiffs oppose the motion on the grounds that the supplemental bill of particulars is an amplification ofthe plaintiffHadjuk-Gillespie' s ongoing medical treatment for the injures previously alleged and updated information regarding her special damages. Additionally, the plaintiffs contend that, pursuant to CPLR 3043(b), leave of the court is not required to serve a supplemental bill of particulars containing claims that are for continuing special damages and disabilities. A bill of particulars is not itself a pleading (see Linker v County of Westchester, 214 AD2d 652, 625 NYS2d 289 [2d Dept 1995]) and, as a rule, may not be employed to supply allegations that are missing from the complaint (see Sulliva.n v St. Francis Hosp., 45 AD3d 833, 846 NYS2d 228 (2d Dept 2007]; Melino v Tougher Heating & Plumbing Co., 23 AD2d 616, 256 NYS2d 885 [2d Dept 1965]). Nor may it be used to add or substitute a new theory or cause of action or defense (see Willinger v Greenburgh, 169 AD2d 715, 564 NYS2d 466 [2d Dept 1991 ]). "[T]he purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial" (Jones v LeFrance Leasing Ltd. Partners/tip, 61 AD3d 824, 825, 877 NYS2d 424 (2d Dept 2009]; see Jurado v Ka/ache, 93 AD3d 759, 940 NYS2d 300 [2d Dept 20 l 2]). A party may serve a supplemental or amended bill or particulars with respect to claims of continuing special damages and disabilities, provided that no new causes of action are alleged or new injuries claimed (see CPLR 3043; Erickson v Cross Ready Mix, Inc. , 98 AD3d 717, 950 NYS2d 717 [2d Dept 2012]; Alami v 215 E6th SL, L.P., 88 AD3d 924, 931NYS2d647 (2d Dept201 l]). Moreover, the court has broad discretion to grant or deny any further or different bills of particulars (see CPLR 3042(b); Grande v Peteroy, 39 AD3d 500, 833 NYS2d 615 [2d Dept 2007]), and, as long as there is no prejudice demonstrated, a supplemental bill of particulars may be permitted at the discretion of the court (see CPLR 3025(cJ; Nociforo v Pena, 42AD3d 514, 840 NYS2d 396 [2d Dept 2007]). The opposing party has the burden of demonstrating prejudice (see Danne v Otis Elevator Corp., 276 AD2d 581 , [* 5] Hajcuk-Gillespie v King Index No. 32495-13 Page 5 714 NYS2d 316 [2d Dept 2000]). Here, the original bill of particulars alleged that the plaintiff Hadjuk-Gillespie sustained injuries to her cervical and lumbar spine, and left wrist, and that she had undergone left wrist synovectomy of the joint of the left wrist, as well as lumbar diskectomy and fusion. It further advised, among other things, that she had sustained cervical disc bulges, lumbar herniations, and an exacerbation of a prior asymptomatic spinal degenerative condition. "Evidence of injuries or conditions not enumerated by the plaintiff in the bill of particulars will not be permitted ... [except] where the record reveals that defendant should have known about such injury or condition" (Twiddy v Std. Marine Transp. Servs., 162 AD2d 264, 264, 556 NYS2d 622 [1st Dept 1990]). Based upon the record before the Court, it is clear that the alleged injuries included in the supplemental bill of particulars flow from the injuries alleged in the original bill of particulars, and, therefore, the defendants cannot legitimately claim to be prejudiced or surprised by their inclusion (see CPLR 3043(b]; Tate vColabello, 58 NY2d 85, 459 NYS2d422 [I983];Alvarado v Beth Israel Med. Ctr., 78 AD3d 873, 911NYS2d174 [2d Dept 2010); Spiegel v Gingrich, 74 AD3d 425, [I st Dept 2010]; Zenteno v Geils, 17 AD3d 457, 793 NYS2d 112 [2d Dept 2005]). Thus, the inclusion of such injuries as cervical and lumbar radiculopathy or herniations to the cervical and lumbar region do not rise to the level of new injuries. Instead they are sequela ofthe plaintiffHadjuck-Gillespie's original injuries, and therefore, expand on the extent of the continuing disability (see Shahid v New York City Healtlt & Hosps. Corp. , 47 AD3d 798, 850 NYS2d 521 [2d Dept 2008); e.g. Paul v Glickman, 232 AD2d 465, 648 NYS2d 339 [2d Dept 1996]). However, the defendants have demonstrated that the inclusion of reflex sympathetic dystrophy of the lower extremities and hypersensitivity of the right foot are not merely sequela of the plaintiff Hadjuk-Gillespie' s original injuries, but are new injuries. It cannot be said that the defendants were aware of or should have known about such complaints or injuries. rnasmuch as those are new injuries, they are stricken from the supplemental bill of particulars. Accordingly, the defendants' motion for, inter alia, an order striking the plaintiffs' supplemental bill of particulars is granted to the extent set forth herein, and is otherwise denied. Dated: l 7. I i;J Jt>tl FlNAL DISPOSITION c.~Ar0 HON. W. ~ASHER X NON-FINAL DISPOSITION

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.