Zito v. City of New York

Full title: CHARLES ZITO, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 6, 2010

72 A.D.3d 451 (N.Y. App. Div. 2010)

897 N.Y.S.2d 632

Opinion

April 6, 2010.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 14, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend and supplement his bill of particulars and granted defendant City of New York's motion to preclude plaintiffs expert from testifying, unanimously affirmed, without costs.

Cascione, Purcigliotti Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for appellant.

Before: Friedman, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.

The court properly denied plaintiff's motion to amend and supplement his bill of particulars to incorporate a new theory of liability after the filing of the note of issue and absent a reasonable excuse for the delay in moving ( Lupo v Pro Foods, LLC, 68 AD3d 607, 608). In light of the foregoing, the court properly precluded plaintiff's expert from testifying as to the new theory.