Weiss v Hudson

[*1] Weiss v Hudson 2005 NY Slip Op 51688(U) [9 Misc 3d 135(A)] Decided on October 20, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
2005-1 K C

ALLEN WEISS, Appellant,

against

JAMES D. HUDSON, D.M.D., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered October 6, 2004. The order granted defendant's motion to strike plaintiff's "supplemental" bill of particulars.

Order unanimously reversed without costs and defendant's motion to strike plaintiff's amended bill of particulars denied.

This dental malpractice and breach of contract action was commenced in Supreme Court in November 1998, and a note of issue was filed in January 2000. The [*2]
case was subsequently marked off the calendar, and the note of issue was vacated in October 2000. In November 2002, plaintiff moved to restore the case to the calendar and sought leave to serve a "supplemental" bill of particulars. In January 2003, the Supreme Court granted the branch of plaintiff's motion seeking restoration, transferred the case to the Civil Court pursuant to CPLR 325 (d), and indicated that plaintiff could seek any
further relief in the court below. In February 2004, plaintiff served defendant with a "supplemental" bill, and filed a notice of trial in April 2004. In May 2004, defendant
moved to strike the bill, which motion plaintiff opposed. By order entered October 6, 2004, the Civil Court granted defendant's motion.
Plaintiff's self-entitled "supplemental" bill of particulars sought to add new injuries and new theories of liability. Consequently, his November 2002 motion, in effect, sought leave to amend his bill of particulars (see e.g. Fuentes v City of New York, 3 AD3d 549 [2004]). A party can amend their bill of particulars once, as of course without leave of the court, prior to the filing of a note of issue (CPLR 3042 [b]). Inasmuch as plaintiff served defendant with his amended bill of particulars after the note of issue had been vacated in
Supreme Court, and before the notice of trial had been filed in Civil Court, he was not required to seek leave to serve said bill (see e.g. Leach v North Shore Univ. Hosp. at Forest Hills, 13 AD3d 415 [2004]; Reitman v St. Francis Hosp., 2 AD3d 429 [2003]), and the court below should have denied defendant's motion to strike.
Decision Date: October 20, 2005