New York State Court of Claims

New York State Court of Claims
HOWELL v. THE STATE OF NEW YORK and the CITY UNIVERSITY OF NEW YORK, # 2017-032-064, Claim No. 123459, Motion Nos. M-90779, M-90780

Synopsis

Defendant's motion to strike the Note of Issue is granted, and claimant's motion to supplement the Bill of Particulars is granted.

Case information

UID: 2017-032-064
Claimant(s): MICHAEL HOWELL
Claimant short name: HOWELL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK and the CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123459
Motion number(s): M-90779, M-90780
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Hach & Rose, LLP
By: John A. Blyth, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Alexia Capote Dodd, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: December 20, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant commenced this action on November 6, 2013, seeking damages for injuries sustained when a defective library chair collapsed beneath him. The incident took place on the City University of New York (CUNY) campus. On February 5, 2014, claimant served a Verified Bill of Particulars specifying the injuries claimed in this action, including a fracture of the lumbar spine at L4-L5. On December 5, 2014, claimant appeared for an Examination Before Trial where he gave testimony on the injuries he sustained. Claimant filed a Note of Issue on February 2, 2016. The Court scheduled a trial on liability on June 29, 2017, but later adjourned the trial in light of the instant motions. Claimant now moves to supplement or amend the Bill of Particulars. Defendant moves to strike the Note of Issue and conduct additional discovery.

Motion to Strike the Note of Issue and Conduct Additional Discovery

Defendant moves to strike the note of issue on the ground that discovery is not yet complete in this matter. Claimant does not oppose striking the Note of Issue and conducting additional discovery.

The decision to grant or deny a defendant's request to strike a claimant's note of issue is within the discretion of the Court (Pannone v Silberstein, 40 AD3d 327, 328 [1st Dept. 2007]). "Generally, if a case is not ready for trial, the note of issue must be stricken" (Hutchins v Wand, 82 AD2d 928, 928 [3d Dept. 1981] [citations omitted]. In circumstances such as these where both parties agree that additional discovery is necessary, the note of issue should be stricken (see Donald v Ahern, 96 AD3d 1608, 1611 [4th Dept. 2012]; Heritage Knitwear, Inc. v Jonathan Logan, Inc., 115 AD2d 389, 389 [1st Dept. 1985]). Accordingly, the Court strikes the Note of Issue filed by claimant.

Motion to Supplement the Bill of Particulars

Claimant now moves to supplement the Bill of Particulars to include claimant's ongoing lumbar spine treatment. Specifically, claimant seeks to supplement the Bill of Particulars to include claimant's (1) L4-L5 lumbar epidural injection that he received on March 29, 2017, and (2) surgery on his left foot that took place on July 7, 2017. Defendant does not oppose claimant's motion as long as the Note of Issue is stricken and defendant is permitted to pursue additional discovery.

Pursuant to CPLR 3043 (b), a party may serve a supplemental bill of particulars without leave of court at any time, but not less than 30 days prior to trial, so long as no new cause of action or new injury is alleged. Here, claimant attempted to serve a supplemental Bill of Particulars on defendant on May 9, 2017, more than 30 days before the June 29, 2017 trial date. Defendant refused service of the Supplemental Bill of Particulars. Because defendant currently holds no objection to claimant's Supplemental Bill of Particulars, and because claimant does not object to defendant's request to pursue additional discovery, the Court exercises its discretion pursuant to CPLR 3043 (c) and grants claimant's motion to supplement the Bill of Particulars.

Accordingly, it is hereby

ORDERED that Motion No. M-90779 is granted and the Note of Issue is stricken; and it is further

ORDERED that Motion No. M-90780 is granted and claimant shall serve a Supplemental Bill of Particulars within 30 days from the date of filing of this Decision and Order; and it is further

ORDERED that counsel for claimant and defendant shall make themselves available for a telephone conference with the Court regarding an amended scheduling order in this matter on January 31, 2018 at 10:00 a.m. The Court will initiate the call.

December 20, 2017

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated July 18, 2017; and Affirmation in Support, signed by Alexia Capote Dodd, AAG on July 18, 2017, with Exhibits.

2. Notice of Motion, dated July 19, 2017; and Affirmation in Support of Plaintiff's Motion for Leave to Supplement and/or Amend the Bill of Particulars, signed by John A. Blyth, Esq. on July 19, 2017, with Exhibits.

3. Affirmation in Opposition to Claimant's Motion to Amend or Supplement the Bill of Particulars and Reply Affirmation, signed by Alexia Capote Dodd, AAG on September 12, 2017, with Exhibits.

4. Reply Affirmation in Further Support of Plaintiff's Motion for Leave to Supplement and/or Amend the Bill of Particulars and in Opposition to Defendants' Motion to Strike/Vacate Plaintiff's Note of Issue, signed by John A. Blyth, Esq. on September 19, 2017.

5. Correspondence from John A. Blyth, Esq., dated December 4, 2017.