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Supplemental or Amended Bill of Particulars? (NY)

April 27, 2018

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<p style="text-align: justify;">In <a href="http://www.courts.state.ny.us/reporter/3dseries/2018/2018_02604.htm"><em>Kirk v. Nahon</em></a>, the Appellate Division rebuked a recurring discovery procedure used by plaintiffs attorneys to add additional injuries during the course of personal injury litigation by serving additional Bills of Particulars.</p>
<p style="text-align: justify;">The plaintiff in <em>Kirk</em> filed a lawsuit in Nassau County Supreme Court for personal injuries allegedly sustained after his vehicle was hit in the rear by the defendants' vehicle. The initial Bill of Particulars and Supplemental Bill of Particulars alleged various injuries to the plaintiff's back, neck, and knee. The plaintiff later served what he labeled a "second supplemental bill of particulars," which alleged "consequential stroke," and thereafter, a "third supplemental bill of particulars," which amplified the allegations as to the stroke.</p>
<p style="text-align: justify;">However, at his deposition, the plaintiff testified that there was no causal connection between the stroke he suffered and the accident. As such, the defendants filed a motion to strike the second and third Supplemental Bills of Particulars. The Supreme Court granted the motion, and the plaintiff appealed.</p>
<p style="text-align: justify;">The Appellate Division decision ruled that the plaintiff’s labeling of Bills of Particulars as <span style="color: #333333; font-style: normal;">“supplemental”</span><span style="color: #333333; font-style: normal;"> </span>does not control the reality of the pleadings. The “supplemental” Bills of Particulars were in fact amended Bills of Particulars, as they sought to add new injuries. Citing CPLR Section 3403 and case law, the Appellate Division held that leave to amend a Bill of Particulars is ordinarily to be freely given in the absence of prejudice or surprise, but in <em>Kirk</em> “the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries.”</p>
<p style="text-align: justify;">As such, the Appellate Division found that the Supreme Court properly granted the defendants’ motion to strike the second and third supplemental bills of particulars.</p>
Thanks to George Parpas for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> for more information.

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