Opinion
12880N Index No. 800281/11 Case No. 2019-4653
01-14-2021
Catherine E. NAPOLITANO, Plaintiff–Appellant, v. Susan M. GUSTAVSON, R.V.T., et al., Defendants–Respondents.
Law Offices of Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant. Harris Beach PLLC, Pittsford (Svetlana K. Ivy of counsel), for respondents.
Law Offices of Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.
Harris Beach PLLC, Pittsford (Svetlana K. Ivy of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Kapnick, Singh, Mendez, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered on or about April 15, 2019, which, insofar as appealed from as limited by the briefs, granted defendants' motion to strike plaintiff's supplemental bill of particulars, denied plaintiff's cross motion for leave to amend the initial bills of particulars, and directed plaintiff to post security for costs pursuant to CPLR 8501(a) and 8503, unanimously modified, on the law, the supplemental bill of particulars reinstated in part, the security for costs vacated, and otherwise affirmed, without costs.
The court should not have stricken plaintiff's supplemental bill of particulars dated October 2018 in its entirety. Most of the injuries set forth therein, specifically those related to the left leg, syncope, and psychological and emotional trauma, were not new injuries, but were amplifications and elaborations of the injuries set forth in the bills of particulars served in October and November 2012, or were the anticipatable sequellae thereof (see Tate v. Colabello, 58 N.Y.2d 84, 87, 459 N.Y.S.2d 422, 445 N.E.2d 1101 [1983] ; Scherrer v. Time Equities, Inc., 27 A.D.3d 208, 209, 810 N.Y.S.2d 454 [1st Dept. 2006] ).
Moreover, the allegations of improper conduct merely expounded on the theories of liability set forth in the 2012 bills. To the extent the 2018 supplemental bill raises new theories of liability and injuries, plaintiff was entitled to serve them as amendments "as of course" under CPLR 3042(b), as no note of issue has been filed, and no prior amended bill of particulars has been served. Nevertheless, the new claim for battery was properly stricken, as it raises a new cause of action not pleaded in the complaint (see Paterra v. Arc Development LLC, 136 A.D.3d 474, 475, 24 N.Y.S.3d 631 [1st Dept. 2016] ). To the extent plaintiff seeks leave to amend the complaint to add such a claim under CPLR 3025(b), that claim is time-barred (see Cerilli v. Kezis, 306 A.D.2d 430, 761 N.Y.S.2d 311 [2d Dept. 2003] ).
The court should not have required plaintiff to post security for costs under CPLR 8501(a) and 8503. While plaintiff is a resident of New Jersey, the record indicates that she also maintained a residence in Manhattan, and that defendants have in fact been serving papers upon her at that address since the beginning of this litigation in 2011 (see Gold v. City of New York, 42 Misc.3d 1209(A), 2014 N.Y. Slip Op. 50014(U), 2014 WL 101664 [Sup. Ct., N.Y. County 2014] ). Plaintiff also owns a New York business, and has been operating it out of the same New York address.