Opinion
305450/2011
01-30-2019
Paul LAZZARI, Plaintiff, v. QUALCON CONSTRUCTION, LLC, Tomcon Industries James Sasso and Consolidated Edison Company of New York, Defendants.
Luis L. Haquia, Esq., Davis, Saperstein & Salomon, P.C., New York, NY, for plaintiff Lindsay J. Kalick, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for defendants Qualcon Construction, LLC, Sasso and Consolidated Edison Company of New York
Luis L. Haquia, Esq., Davis, Saperstein & Salomon, P.C., New York, NY, for plaintiff
Lindsay J. Kalick, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY, for defendants Qualcon Construction, LLC, Sasso and Consolidated Edison Company of New York
John R. Higgitt, J. Plaintiff's motion seeking leave to amend his bill of particulars to include a claim that, as a result of the subject motion vehicle accident, he sustained an aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1, is granted to the extent indicated below.
On June 17, 2011, plaintiff commenced this action to recover damages he allegedly sustained as a result of a July 23, 2009 motor vehicle accident. Plaintiff served a bill of particulars in August 2012; he has supplemented that bill several times. The thrust of plaintiff's allegations was that defendants' negligence caused plaintiff to suffer stenosis in the lumbar aspect of his spine with accompanying disc bulges and herniations, and related sequelae. Plaintiff filed a note of issue and certificate of readiness in June 2015. Approximately six months later, defendants Qualcon Construction, LLC, Sasso and Consolidated Edison Company of New York ("the Qualcon defendants") sought summary judgment dismissing the complaint on the ground that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). Plaintiff opposed that motion.
In February 2016, plaintiff served a "supplemental" bill of particulars in which he formally claimed for the first time that, as a result of the July 2009 motor vehicle accident, he sustained an "aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1 causing acute instability and impingment/compression of the nerve roots into the foramen bilaterally causing cauda equine syndrome resulting in the need for emergent lumbar surgery which consisted of [various components]." This "supplemental" bill of particulars was, in fact, an amended bill of particulars -- it asserted a new injury (i.e., aggravation of a pre-existing condition) -- that was without legal effect because it was served after the filing of the note of issue without leave of court (cf. Vargas v. Villa Josefa Realty Corp ., 28 A.D.3d 389, 815 N.Y.S.2d 30 [1st Dept. 2006] ).
By a decision and order, dated May 4, 2017, Justice Johnson denied the Qualcon defendants' summary judgment motion, and the Appellate Division, First Department, affirmed that order (see 162 A.D.3d 440, 78 N.Y.S.3d 126 [2018] ).
In February 2018, approximately two years and eight months after the filing of the note of issue, plaintiff made the instant motion to amend his bill of particulars to include the allegations asserted in the previously-described "supplemental" bill of particulars. Plaintiff does not offer any excuse for his significant delay in seeking the amendment; rather, he argues that the Qualcon defendants would not be prejudiced by it. (Although plaintiff does not provide a copy of a proposed amended bill of particulars [cf. CPLR 3025(b) ], he submitted a copy of the prior "supplemental" bill of particulars containing the amendment that plaintiff seeks.)
The Qualcon defendants oppose the motion to amend, arguing principally that the motion should be denied because plaintiff was aware of the facts underlying the proposed amendment before filing the note of issue and offered no excuse for his inordinate delay in seeking leave to amend, and that permitting the amendment at this point in the litigation would prejudice the Qualcon defendants, forcing them to change their defense strategy. Also, the Qualcon defendants highlight that, prior to serving the "supplemental" bill of particulars in February 2016, plaintiff did not allege exacerbation or aggravation of a lumbar spine condition or injury, and the "supplemental" bill of particulars, which the Qualcon defendants returned to plaintiff as "rejected," was without legal effect because it was an amended bill of particulars served without leave of court.
"Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise, unless the amendment is sought on the eve of trial" ( Alvarado v. Beth Israel Med. Ctr. , 78 A.D.3d 873, 874, 911 N.Y.S.2d 174 [1st Dept. 2010] ). Prejudice (or the lack thereof) is the critical consideration in determining whether leave to amend is appropriate (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025, C3025:6 [main vol.] ). "Prejudice" in this context means "that the [party opposing the motion] has been hindered in the preparation of his [or her] case or has been prevented from taking some measure in support of his [or her] position"; mere exposure to greater liability does not constitute prejudice ( Kimso Apartments, LLC v. Gandhi , 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014], quoting Loomis v. Civetta Corinno Const. Corp ., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981] ). "The burden of establishing prejudice is on the party opposing the amendment" ( Kimso Apartments, LLC , 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ).
Here, the Qualcon defendants will not be prejudiced by the proposed amendment, which was sought long after the filing of the note of issue but not on the eve of trial, because both Justice Johnson and the First Department made express reference to the claim that, as a result of the subject motion vehicle accident, plaintiff sustained an aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1.
In his May 4, 2017 decision and order denying the Qualcon defendants' motion for summary judgment, Justice Johnson found that plaintiff raised triable issues of fact as to whether he sustained a "serious injury" under the threshold categories of permanent consequential limitation and significant limitation. In making that finding, Justice Johnson reviewed and quoted from the affirmation of plaintiff's treating neurosurgeon (Dr. Moore). In that affirmation, the neurosurgeon, who performed lumbar decompression, laminectomy, and fusion and instrumentation at the L4-5 and L5-S1 levels of plaintiff's spine, noted that plaintiff "suffered from pre-existing intermittent symptomology associated with spinal stenosis in his back prior to his accident on July 23, 2009," and opined that the accident caused "significant deterioration" of plaintiff's lumbar spine condition (plaintiff's opp. to prior summary judgment motion, ex. F, affirmation of Dr. Moore, at ¶¶ 11-12 [emphasis added] ).
In affirming Justice Johnson's order, the First Department, too, relied on the neurosurgeon's affirmation. The appellate court wrote, in pertinent part, that
"The neurosurgeon acknowledged plaintiff's documented history of lower back problems, and explained that the accident aggravated plaintiff's
preexisting conditions, causing new post-accident symptoms of bilateral weakness, urinary dysfunction and spinal instability that were not previously present and required emergency surgery. He concluded that the accident caused ‘significant deterioration’ " ( 162 A.D.3d at 441, 78 N.Y.S.3d 126 [emphasis added] ).
Since at least May 2017, when they received notice of Justice Johnson's decision and order, the Qualcon defendants have been aware of plaintiff's aggravation-of-spinal-stenosis claim. Thus, they cannot establish that they will be prejudiced by an amendment reflecting that claim. The court notes the incongruity that would result if it denied plaintiff's motion to amend the bill of particulars to include a claim that both Justice Johnson and the First Department previously recognized. Ultimately, the Qualcon defendants have not been hindered in the preparation of their case or prevented from taking some measure in support of their position (see Loomis v. Civetta Corinno Const. Corp ., supra ; see also Nociforo v. Penna , 42 A.D.3d 514, 840 N.Y.S.2d 396 [2d Dept. 2007] ; cf. Daud v. Forest and Garden Apts. Co ., 178 A.D.2d 578, 577 N.Y.S.2d 475 [2d Dept. 1991] [plaintiffs' motion for leave to amend denied because the proposed amendment, sought long after the filing of the note of issue, would compel defendants to "substantially reorient" their defense] ). Plaintiff's significant delay is unaccompanied by prejudice to the Qualcon defendants, and therefore does not bar the amendment (see Edenwald Contracting Co. Inc. v. City of New York , 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 [1983] ; Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025, C3025:5 [main vol.] ).
That the amendment will be permitted does not end the inquiry, for CPLR 3025(a) demands that leave be granted "upon such terms as may be just including the granting of costs and continuances." One of the "terms" recognized by the courts as potentially appropriate is the payment of attorneys' fees to the party opposing the motion (see Patruno v. Mobil Oil Corp. , 171 A.D.2d 408, 566 N.Y.S.2d 634 [1st Dept. 1991] ; Jerome Stevens Pharmaceuticals, Inc. v. Budoff , 112 A.D.2d 361, 491 N.Y.S.2d 812 [2d Dept. 1985] ; Sheppard v. Charles A. Smith Well Drilling and Water Systems , 102 A.D.2d 919, 477 N.Y.S.2d 480 [3d Dept. 1984] ; Ciunci v. Wella Corp ., 23 A.D.2d 754, 258 N.Y.S.2d 994 [1st Dept. 1965] ; Siegel & Connors, NY Practice § 237 [6th ed] ).
The Qualcon defendants' opposition to the motion is focused mainly on plaintiff's unexplained, significant delay in seeking leave to amend. Had plaintiff sought leave to amend sooner, the Qualcon defendants may well have stipulated to permit the amendment or allowed a motion for leave to amend to go unopposed. (Also, plaintiff could have amended the bill of particulars as of right [see CPLR 3025(a) ].) Because plaintiff put the Qualcon defendants in the position of opposing the motion to amend on the ground that plaintiff inexcusably waited a significant period of time before seeking leave to plead a new injury -- a good faith argument against granting leave -- it is just to condition leave to amend on plaintiff paying to the Qualcon defendants a reasonable attorneys' fee for the time and effort that their counsel expended in preparing the opposition to this motion.
A court cannot impose "costs" under CPLR 3025(b) to punish a party for exercising his or her right to seek leave to amend (see Vitale v. Eventquest, Inc ., 38 A.D.3d 330, 832 N.Y.S.2d 37 [1st Dept. 2007] ). The court appreciates this important limiting principle, and stresses that the attorneys' fees imposed by this decision and order are not designed to punish plaintiff for seeking leave, but to compensate the Qualcon defendants for an unnecessary litigation expense.
Accordingly, it is ORDERED that plaintiff's motion seeking leave to amend the bill of particulars to include a claim that, as a result of the subject motor vehicle accident, he sustained an aggravation of spinal stenosis with herniated discs at L4-5 and L5-S1, is granted on the condition that, within 30 days of the date of service upon plaintiff's counsel of a copy of this order with notice of entry thereof, plaintiff shall pay to the Qualcon defendants' counsel the sum of $ 500; and it is further
ORDERED that, simultaneously with the payment of the aforementioned sum, plaintiff is directed to serve an amended bill of particulars complying with CPLR 3025(b) on the Qualcon defendants' counsel.
This constitutes the decision and order of the court.