Friday, September 14, 2012

Supplemental Vs. Amended Bill of Particulars

           A recent Appellate Division, Second Department decision highlights the difference between an amended and supplemental bill of particulars in a personal injury case.  (A bill of particulars is a written statement that amplifies the allegations or defenses in a lawsuit.)  In Erickson v. Cross Ready Mix, Inc., et al. (2nd Dept. 2012, Index No. 11947/05), the plaintiff allegedly was injured on a construction site when he was struck by a swinging chute on the back of a cement truck.  In his initial response to a demand for a bill of particulars, the plaintiff claimed that his medical treatment would include “lumbar spinal fusion surgery.”  After the surgery was performed, the plaintiff made a motion to amend his bill of particulars to include, among other things, further injuries which he allegedly sustained during the surgery.

            The Court dismissed plaintiff’s motion as it was unnecessary, holding the following: “pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court, if it alleges ‘no new cause of action . . . or new injury.’  Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars rather than an amended bill of particulars.  Since the document entitled 'Amended Response To Defendant’s Demand For A Verified Bill Of Particulars,' which we deem to be a supplemental bill of particulars, was served more than 30 days prior to trial, leave of court was not required (see CPLR 3043[b]).  Accordingly, the plaintiff’s motion must be denied as unnecessary."

Salvatore R. Marino, Esq.

Saturday, June 16, 2012

Defective Gate Claim Against City Dismissed

           In Silvia Durri v. City of New York, et al. (2nd Dept 2012, Index No. 25767/08), the facts are as follows: as the plaintiff was attempting to open a metal gate at the defendants’ parking lot, the hinges of the gate came apart; although the plaintiff tried to hold up the gate with her hands, she was unable to do so, and the gate ultimately fell on top of her, causing her to fall and allegedly sustain injuries.  Thereafter the plaintiff sued the City of New York and other parties alleged to have been responsible for the defective gate.  After discovery was completed, the defendants made a motion for summary judgment, which was granted by the trial court and affirmed by the Appellate Division, Second Department.

The Appellate Division held the following: “[the defendants established] that they did not create or have actual or constructive notice of any hazardous condition...the defendants’ custodian testified at a deposition that he inspected the gate twice a week, never observed any defects in the gate, and never received any complaints about the gate prior to the accident.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition.  [Additionally,] contrary to the plaintiff’s contention, the doctrine of res ipsa loquitur is not applicable here.  The evidence did not show that the defendants were in exclusive control of the gate.”

Salvatore R. Marino, Esq.

Friday, March 2, 2012

Notice of Claim Not Required for Equitable Action

           In Howard Johnson v. City of Peekskill (2d Dept. 2012, Index No. 009-09430, decided on January 24, 2012), the plaintiff commenced a civil action against the City of Peekskill seeking an injunction to compel the City to issue him a building permit for a two-family house and for money damages, both compensatory and punitive, arising from the City’s failure to issue the permit.  The Supreme Court granted the City’s motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to New York General Municipal Law §§ 50-e and 50-i, and denied the plaintiff’s cross-motion for leave to serve a late notice of claim.

            On appeal, the Appellate Division, Second Department reversed the lower court’s decision, holding that a notice of claim did not have to be served because a tort action was not commenced.  The Court stated the following: “General Municipal Law § 50-e mandates that a notice of claim must be served as a condition precedent to the commencement of a tort action against a municipality…[however,] the plaintiff’s claim is not subject to the notice of claim statute because his claim is primarily equitable in nature…although the complaint also demands compensatory and punitive damages for the alleged wrongful act committed by the City, compliance with the notice of claim requirements of section 50-e is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief.”

Salvatore R. Marino, Esq.

Saturday, January 7, 2012

Scooter Not "Dangerous Instrument"

            In Zarilla v. Pennachio (2d Dept., Index No. 100107/10, decided on or around December 27, 2011), the plaintiff lost her negligence case against the mother of a child that injured her. 

The plaintiff was allegedly injured when she was struck by a battery-powered scooter operated by a child.  At the time of the incident, the child was under the care of the plaintiff and her husband.  The defendant, who is the child’s mother, was not present.  The plaintiff and her husband, suing derivatively, commenced a negligence against the defendant alleging, among other things, that the defendant negligently entrusted the child with a dangerous instrument.  The defendant moved for summary judgment dismissing the complaint, but the lower court denied this motion.

On appeal, the Appellate Division reversed the lower court’s decision.  The Court stated the following: “a parent owes a duty to protect third parties from harm that is clearly foreseeable from his or her child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control…[however,] 'items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments' ([citing] Rios v Smith, 95 NY2d at 653).  Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law…[the child] was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six.  Further, [the child’s] operation of the scooter was consistent with its intended use.  In opposition, the plaintiffs failed to raise a triable issue of fact.”

Salvatore R. Marino, Esq.