Opinion
17877-2003.
Decided September 12, 2005.
Michael S. Lamonsoff, Esq. New York, New York, Attorney for Plaintiff.
Baxter Smith, P.C. Jericho, New York, Attorneys for Defendants.
Ordered that this motion by the defendants to preclude the plaintiff from offering any proof at trial of the increased lost earnings claim asserted in his supplemental bill of particulars and expert disclosure is considered under CPLR 3043(b) and § 3101(d) and is decided as follows:
This action is for personal injuries resulting from a motor cycle accident. It first appeared in the trial part on March 30, 2005 and was scheduled to select a jury on September 8, 2005. On March 24, 2005, plaintiff served a supplemental bill of particulars increasing the claim for lost earnings to $130,400.00 with the addition that it was continuing. In his original bill of particulars the plaintiff claimed lost earnings in the amount of $42,600.00 [see bill of particulars 19(f)]. Plaintiff then served expert disclosure concerning an economist on August 11, 2005. The expert economist is to testify as to the amount of lost earnings and associated economic loss to include: loss of health insurance, loss of topping out fund, loss of annuity funds and loss of social security retirement income. Loss of earnings now claimed is $2,508,877.00.
The CPLR provides that the plaintiff may supplement a bill of particulars without court leave 30 days prior to trial. Plaintiff's bill of particulars seeks to increase the amount of lost earnings. This is not a new injury or claim and was timely made within the 30 days. Accordingly, it is permissible.
Regarding the expert disclosure, CPLR § 3101(d)(1)(I) was intended to provide timely disclosure of expert witness information between parties for the purpose of adequate and thorough trial preparation. The statute provides that where a party for good cause shown retains an expert in an insufficient period of time before commencement of the trial to give appropriate notice, the court may make whatever order may be just [CPLR § 3101(d)(1)(I)]. The statute does not set forth any specific time period when it would be inappropriate to give notice. Here the notice was not after the trial was commenced or even after the date to select a jury (Young v. Long Island University, 297 AD2d 320, 746 N.Y.S.2d 390). However, although the notice may have been timely, it does allege new claims of economic loss other than lost earnings. Such claims are not contained in the original bill of particulars and would be inappropriate in a supplemental bill. The court finds that the assertion of these new claims three weeks before trial is prejudicial (Chapman v. State, 227 AD2d 867, 642 N.Y.S.2d 975). Accordingly, the expert economist is limited in his testimony to the amount of lost earnings. He may not testify at trial to lost health insurance, topping out fund, annuity funds and social security retirement income.