Opinion
2011-12-15
Mercedes COLWIN, Plaintiff–Respondent, v. Bruce KATZ, M.D., et al., Defendants–Appellants.
Dwyer & Taglia, New York (Peter R. Taglia of counsel), for appellants. Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Dwyer & Taglia, New York (Peter R. Taglia of counsel), for appellants. Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 16, 2011, which denied defendants' motion to compel plaintiff to submit a further or supplemental bill of particulars, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff alleges that she suffered personal injuries as a result of defendants' performance of cosmetic surgery. In her bill of particulars, plaintiff alleges that she sustained, among other things, lymphedema in her right leg resulting in “pain and tenderness in her right leg, knee, ankle and foot, restriction of motion ... weakness, inability to bear weight, loss of function and the articulations, [and] aggravation of a preexisting latent and asymptomatic degenerative condition.” Defendants moved to compel a further response to their demands, seeking a specific statement as to the injury sustained, i.e., whether the lymphedema was caused or simply aggravated by the alleged malpractice.
“The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial” ( Harris v. Ariel Transp. Corp., 37 A.D.3d 308, 309, 830 N.Y.S.2d 121 [2007]; Twiddy v. Standard Mar. Transp. Servs., 162 A.D.2d 264, 265, 556 N.Y.S.2d 622 [1990] ). It need not set forth a matter that is evidentiary in nature, which is more appropriately obtained through depositions and expert disclosure ( see Harris, 37 A.D.3d at 309, 830 N.Y.S.2d 121). Not only was it permissible for plaintiff to amplify the nature of her injuries in the bill of particulars ( see Anderson v. Dainack, 39 A.D.3d 1065, 1068, 834 N.Y.S.2d 564 [2007]; Behan v. Data Probe Intl., 213 A.D.2d 439, 440, 623 N.Y.S.2d 886 [1995]; cf. Barrera v. City of New York, 265 A.D.2d 516, 518, 697 N.Y.S.2d 132 [1999] ), defendants seek evidentiary matter not within the scope of a bill of particulars ( see Harris, 37 A.D.3d at 309, 830 N.Y.S.2d 121). Plaintiff's response, which includes medical records that illuminate her preexisting injuries or condition ( see Sobel v. Midchester Jewish Ctr., 52 A.D.2d 944, 383 N.Y.S.2d 635 [1976] ), is sufficient to apprise defendants of the nature of the injury (CPLR 3043[a][6] ).