Soto v Trinity Morris Corp.
Annotate this CaseDecided on December 17, 2004
Supreme Court, Bronx County
Monserrate Soto AND LUZ SOTO, Plaintiff(s),
against
Trinity Morris Corp., S/H/A TRINITY MORSE CORP., F/N/A ANDROS BROADWAY, INC., Defendant(s)
07461/95
Plaintiff's Attorney: Law Office of Tom Stickel, 910 Grand Concourse, Bronx, NY 718-293-4800.
Attorney for Trinity Morris Corp., Eustace & Marquez, 1311 Mamaroneck Ave., White Plains,
NY, 914- 989-6650.
Attorney for Marcato Elevator Co., Oshman & Helfenstein, LLP, 90 William Street, 6th Fl., NY,NY, 212-233-2100.
Stanley Green, J.
The motion by defendant/third-party plaintiff Trinity Morris Corp. (Trinity) for an order pursuant to CPLR§ 3404 dismissing the complaint on the ground that plaintiff has failed to respond to defendant's continuing disclosure demands or present himself for further deposition and physical examination with respect to newly alleged injuries and damages is denied. The cross-motion by plaintiff for an order restoring this matter to the pre-trial calendar and for permission to amend the bill of particulars is granted only to the extent that this matter shall be restored to the trial calendar of March 1, 2004.
Plaintiff commenced this action to recover damages for personal injuries he sustained on April 6, 1994, while working on an elevator inside the premises owned by Trinity. As plaintiff was reinstalling a bearing block, a cable block clamp came loose, causing his left hand to become caught between the bearing block and a channel beam. As a result, his left distal thumb had to be amputated.
This action was commenced in 1995. Issue was joined by service of Trinity's answer dated January 12, 1996. Plaintiff was deposed on October 25, 1996. At his deposition, plaintiff testified that he had no complaints about any parts of his body being injured other than his left [*2]thumb. Plaintiff also testified that he had continued to work since returning to work nine months after the accident. In June 2001, plaintiff filed the note of issue and certificate of readiness.
On May 19, 2003, the parties attended a mediation where plaintiff informed defendants that plaintiff intended to claim that as a result of the injury to his left thumb, he suffered additional injuries to his left arm, neck and back which led to surgeries to both neck and back in December 1998 and June 1999, respectively and his inability to return to work.
On June 12, 2003, this matter appeared on the Special Trial Part calendar for jury selection and trial. Plaintiff's counsel made an application to Justice Silver for permission to serve a supplemental bill of particulars to allege neck and back injuries and loss of earnings. Justice Silver marked the case off the calendar and struck the note of issue.
Subsequently, plaintiff filed an order to show cause, returnable July 2, 2003, seeking permission to amend the pleadings to allege the neck and back injuries and loss of earnings. By order dated September 2, 2003, Justice Crispino denied the motion, without prejudice, because it did not contain an affidavit of merit.
Plaintiff renewed the motion in January, 2004. However, the motion was denied by Justice Silver because the motion papers did not include an affidavit from a doctor.
Trinity seeks an order pursuant to CPLR §3404, dismissing this action on the ground that it was stricken from the calendar on June 12, 2003 and plaintiff has taken no action to respond to Trinity's continuing disclosure demands or to present himself for a further physical examination or deposition.
Plaintiff cross-moves for an order restoring this action to the pre-trial calendar and permitting plaintiff to amend the pleadings to allege neck and back injuries and loss of earnings. Plaintiff explains that the delay in seeking to restore this matter was due to the fact that they were attempting to obtain medical records and a medical expert's affidavit in support of their motion to amend the pleadings. In support of the motion, plaintiff submits, inter alia, his own affidavit, the affidavit of Mari Truman, a biomechanical engineer and the affidavit of Dr. Ali Guy.
Defendants contend that plaintiff's motion must be denied as she has failed to provide a reasonable excuse for the delay in moving to restore the case to the trial calendar, failed to establish a lack of prejudice and failed to establish a lack of intent to abandon the action. Defendants also contend that plaintiff's motion to amend the pleadings should be denied on the ground that none of the affidavits are sufficient to establish a causal connection between the newly alleged injuries and the accident.
Pursuant to CPLR §3404 an action that has been marked off the calendar and not restored within one year is deemed abandoned and shall be dismissed without costs for neglect to prosecute. However, a dismissal may be vacated where the plaintiff demonstrates that he has a meritorious case, a reasonable excuse for the delay, a lack of intent to abandon the matter and lack of prejudice to defendants (Palermo v. Lord & Taylor, 287 AD2d 258).
Pursuant to CPLR §3404, a case that is marked off the calendar and not restored within one year is deemed abandoned and shall be dismissed without costs for neglect to prosecute. While this action was stricken from the calendar more than a year ago, court records indicate that the case is still "active." In any event, the affidavits and documents submitted by plaintiffs are sufficient to demonstrate, prima facie, that plaintiff has a meritorious claim and that there was no intention to abandon this matter. Furthermore, plaintiff's counsel explains that part of the delay [*3]was due to the time spent in obtaining a copy of the hospital record and a medical expert affidavit to support plaintiff's motion to amend the bill of particulars. Thus, plaintiff has provided a reasonable explanation for the delay in seeking to restore this case to the trial calendar. However, the case shall be restored to the trial calendar without amendment to the bill of particulars.
As noted in plaintiff's counsel's affirmation, it was not until May 19, 2003, that defendant and third-party defendant were informed that plaintiff "made a link" between the injury to his thumb and subsequent neck and back injuries and his inability to return to work. This occurred on the eve of trial, nearly ten years after the accident involving plaintiff's thumb and seven years after plaintiff testified at his deposition that the only part of his body injured as a result of the accident was his thumb. The proposed amendment alleges new injuries that are inconsistent with plaintiff's prior sworn testimony and plaintiff has offered no explanation for failing to assert these claims earlier.
Furthermore, the affidavits submitted in support of the application are insufficient to establish a causal connection between the accident of April, 1994 and plaintiff's neck and back injuries. Plaintiff's biomechanical expert, Ms. Truman, is not a physician and is not competent to offer an opinion as to causal relationship between plaintiff's newly claimed neck and back complaints and the accident of April 1994. Plaintiff's medical expert, Dr. Guy, first examined plaintiff on August 23, 2004, more than ten years after the accident. While Dr. Guy states that he reviewed "various past medical records such as records from the Hospital for Joint Diseases", he does not identify any of the other records he reportedly reviewed. (It is noted that plaintiff's counsel informed the court that he had only received the Hospital for Joint Diseases record on August 23, 2004, the day of Dr. Guy's examination of plaintiff). In his affirmation, Dr. Guy notes that plaintiff has a history of chronic low back pain and right leg pain in addition to chronic cervical pain "secondary to a work-related accident in 1998"[emphasis added] and also that plaintiff's past medical history was significant for a history of cervical and lumbar problems 20 years earlier. However, despite this history, Dr. Guy opines that plaintiff's thumb injury caused an exacerbation of plaintiff's neck and back injuries and caused him to become totally disabled from working since 1998. In light of the statements contained in the "Admissions History and Physical" portion of the hospital record and in the absence of an affidavit by a treating physician or other competent evidence, Dr. Guy's opinion as to causal relationship is conclusory and speculative.
While leave to amend the pleadings is freely given (CPLR §3024), whether to allow or disallow an amendment is committed to the court's discretion (Murray v. City of New York, 43 NY2d 400). Where it is clear that the proposed amendment is plainly lacking in merit, leave to amend should not be granted (Posner v. Central Synagogue, 202 AD2d 284). Where the motion is first made on the eve of trial, there is no adequate explanation for the delay and the defendants would be severely prejudiced if the amendment were allowed, the motion to amend is properly denied (Vega v. Lenox Hill Hospital, 235 AD2d 302).
This constitutes the decision and order of the court.
Dated:________________________________
Stanley Green, J.S.C.
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.
