Opinion
14865-14865A Index No. 152860/17 Case Nos. 2021-01390, 2021-01391
12-16-2021
Felicia STOVALL, Plaintiff–Appellant, v. LENOX HILL HOSPITAL, Defendants–Respondent.
Sacco & Fillas, LLP, Astoria (Albert R. Matuza, Jr., of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Sacco & Fillas, LLP, Astoria (Albert R. Matuza, Jr., of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.
Orders, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 26, 2020, and on or about October 23, 2020, which, respectively, granted defendant's motion for summary judgment dismissing the complaint and denied as moot plaintiff's cross motion for spoliation sanctions, and denied as moot plaintiff's motion for leave to amend her bill of particulars, unanimously affirmed, without costs.
Defendant established prima facie that there was no defective or hazardous condition at the premises by showing that plaintiff had abandoned that claim (see Rudner v. New York Presbyt. Hosp., 42 A.D.3d 357, 840 N.Y.S.2d 319 [1st Dept. 2007] ). In opposition, plaintiff failed to raise an issue of fact. Her "supplemental" bill of particulars asserting a new theory of liability was in fact an amended bill of particulars, and is a nullity since it was served post note of issue, after defendant filed its motion, and without leave of court (see Gaisor v. Gregory Madison Ave., LLC, 13 A.D.3d 58, 59–60, 786 N.Y.S.2d 158 [1st Dept. 2004] ). In any event, a new theory of liability that was not pleaded in the complaint and is raised for the time in opposition to a motion for summary judgment should not be considered ( Ostrov v. Rozbruch, 91 A.D.3d 147, 154, 936 N.Y.S.2d 31 [1st Dept. 2012] ).
In support of her motion to amend the bill of particulars, plaintiff failed to submit an affidavit or other evidence demonstrating a reasonable excuse for moving for this relief approximately six months after the note of issue was filed and three years after the action was commenced (see Silber v. Sullivan Props., 182 A.D.3d 512, 513, 123 N.Y.S.3d 115 [1st Dept. 2020] ; Wolfer v. 184 Fifth Ave. LLC, 27 A.D.3d 280, 281, 811 N.Y.S.2d 45 [1st Dept. 2006] ). Further, plaintiff sought to add an untimely new theory of liability grounded in medical malpractice (see Silber, 182 A.D.3d at 513, 123 N.Y.S.3d 115 ).
In view of the foregoing, plaintiff's cross motion for spoliation sanctions for the loss of surveillance video is moot.