Preview
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
SUPREME COURT OF THE STATE OF
NEW YORK COUNTY OF QUEENS
---------------------------------------------------------X
THALIA AGATHOCLEOUS,
Index No.: 703721/2018
Plaintiff,
AFFIRMATION IN REPLY
-against-
795 FIFTH AVENUE CORPORTATION
d/b/a THE PIERRE,
Defendant.
---------------------------------------------------------X
Clifford Tucker, an attorney duly licensed to practice law in the State of New York, hereby
affirms the following under penalty of perjury:
1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record
for the plaintiff, and as such am thoroughly conversant with the facts and circumstances herein
based upon the contents of the file maintained by this office.
2. I make this Reply Affirmation in response to the Opposition papers filed by the
defendant and in further support of the instant motion for an Order, pursuant to CPLR §5015(a)(1):
a. vacating the default judgment, vis-à-vis, Decision/Order of the Hon. Pam B.
Jackman. (dated May 24, 2021) and Judgment (entered on May 25, 2021);
b. restoring the Defendants' motion seeking restoring the Defendants’ motion seeking
(a) striking the Plaintiff's purported "Supplemental" Verified Bill of Particulars; (b)
precluding Plaintiff from offering any evidence at trial in connection with the
purported "Supplemental" Verified Bill of Particulars (dated February 3, 2021)
pursuant to CPLR § 3126 and deeming the opposition papers and Cross- Motion
(dated March 26, 2021) submitted herewith, at Exhibit, to have been served on
Defendants' counsel and filed with the Court to CPLR § 3126 and deeming the
1 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
opposition papers and cross- motion (dated March 26, 2021) submitted herewith, at
Exhibit, to have been served on Defendants' counsel and filed with the Court; and,
c. for such other and further relief as the Court may deem just, proper, and equitable.
3. Plaintiff demonstrated sufficient merit in support of her motion to vacate the default
order. Plaintiff’s motion is supported by Plaintiff’s deposition transcript, the underlying motion
papers, medical records, and an expert report. Plaintiff also submitted sufficient legal grounds to
serve Amended Bills of Particulars if they cannot be supplemented. Leave is freely granted and
there is no surprise or prejudice to the Defense. Counsel also demonstrated a reasonable
explanation for not appearing at the conference which is supported by a detailed affirmation. The
Court should grant Plaintiff’s motion herein.
I. Plaintiff Demonstrated Sufficient Merit in Support of her Motion to Vacate the
Default Order.
4. Plaintiff demonstrated sufficient merit of the proposed Supplemental Verified Bill of
Particulars and Cross-Motion in support thereto. Plaintiff submitted her deposition transcript
(Exhibit H), her Affirmation in Support of Cross-Motion and Affirmation in Opposition to
Defendant’s Motion with all exhibits attached thereto, (Exhibit D), and Reply Affirmation to the
Cross Motion with all exhibits attached thereto (Exhibit F). The aforesaid exhibits include medical
records, authorizations, and an expert report.
5. A deposition transcript and supporting documents, including medical records, are
sufficient to demonstrate a potentially meritorious claim. Morsly, Inc. v 527 W. 29th St. Corp., 184
AD2d 401, 402 [1st Dept 1992] (among other items, portions of EBT transcript sufficiently
established meritorious defense); Jones v New York City Tr. Auth., 293 AD2d 322, 322 [1st Dept
2002] (portions of 50H transcript and medical records established meritorious cause of action);
Matter of Allstate Ins. Co. v Hayes, 17 AD3d 669, 671 [2d Dept 2005] (“transcript of the appellant's
2 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
deposition, taken by counsel for Allstate, together with his previously sworn-to notice of claim,
sufficiently showed the existence of a meritorious claim”). 1
6. In this case, Plaintiff testified that on January 6, 2018, she slipped and fell on a wet
floor inside the Pierre Hotel at 2 East 61st Street in Manhattan. Ex. H (Pg. 21, 22, 32, 35). Because
of falling, she sustained injuries.
7. Plaintiff submitted sufficient evidence to demonstrate the merit of a Supplemental
Bill of Particulars alleging fracture of the right posterior eighth rib, blunting of a costophrenic angle,
pleural fluid, and lost earnings.
8. The purported “new” injuries that plaintiff plead in the Supplemental Verified Bill of
Particulars, dated February 3, 2021, were from an X-Ray report from Neighborhood Radiology of
the bilateral ribs that was taken on March 1, 2018. Ex. D (referring to internal exhibit D). Plaintiff
provided an authorization for films and reports from Neighborhood Radiology in Plaintiff's
Responses to Combined Demands, dated June 8, 2018. Ex. D (referring to Exhibit D). Plaintiff
also exchanged Ali Guy, M.D. as an expert under CPLR Section 3101(d) which noted that he
reviewed an x-ray report of the ribs and his diagnoses included “status post fracture of the eighth
rib, now healed.” Ex. D (citing Ex. F). Dr. Guy also referenced the blunted right costophrenic
angle raising the possibility of pleural fluids. Ex. D (citing Ex. F). Plaintiff also attached sufficient
supporting evidence of Blunted right costophrenic angle and pleural fluid. Ex. D (referring to “X-
Ray Ribs Bilateral” on March 1, 2018, by Neighborhood Radiology). Defendant was served with an
authorization for the X-Ray report applicable to the claims in response number "1" the
Supplemental Verified Bill of Particulars prior to the plaintiff filing her Note of Issue and Certificate
of Readiness on September 3, 2019.
1Defendant’s case Byvalets v State, 171 AD3d 1125 [2d Dept 2019] is inapposite. It concerns the Court of Claim’s
subject matter jurisdiction over actions against a State official in the course of her official duties and says little about
what would constitute a potentially meritorious opposition or reasonable excuse.
3 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
9. Plaintiff testified at her EBT that she sustained injury to her right ribs and felt pain
to her ribs. Ex. H (Pg. 44, 69).
10. The foregoing sufficiently demonstrates the merit of the proposed Supplemental Bill
of Particulars. The Court should grant this motion.
11. Regarding lost earnings, Plaintiff provided the defense with Plaintiff’s employment
file from the Worker’s Compensation Board. Ex. D (referring to internal exhibit D). Defendant
was served with authorizations for the employment file and Worker's Compensation Board prior the
filing of the Note of Issue and Certificate of Readiness. Ex. D.
12. Defendant is aware the plaintiff missed time from work and is aware of the amount
of any lost wages claim. If the defendant wanted a further deposition limited to plaintiff's lost wages
claim, the defendant's counsel could have served a notice of deposition or contact this office to
schedule it, both of which were not done.
13. Defense counsel did not specify any other questions he would have asked (or
believed he could not ask) regarding Plaintiff’s employment or lost earnings. He covered the topic
in depth at Plaintiff’s EBT. Defense counsel questioned Plaintiff, at length, about her employment,
including amount of pay, work schedule, and amount of time she was employed. Ex. H (Plaintiff’s
EBT transcript). Plaintiff testified that she was employed at the time of occurrence and was a
freelance florist. Id. She explained her job functions as a florist, the kinds of events she works (e.g.,
weddings), and she was working as a florist for thirty-eight years. Ex. H (Pg. 14). She also testified
about the number of jobs she does, hours she works, and various other job functions. Ex. H.
There is no prejudice or surprise that Plaintiff is making a lost earnings claim.
14. The Court should grant Plaintiff’s motion herein because Plaintiff demonstrated
sufficient merit to vacate the default order and restore the underlying motion (or allow the
Supplemental Bill of Particulars).
4 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
II. Plaintiff Submitted Sufficient Grounds for Leave to Amend or Supplement the Bill of
Particulars
15. The words “prejudice” and “surprise” do not appear in Defendant’s Opposition
papers because there is no evidence of either.
16. Plaintiff provided sufficient legal basis to amend the bill of particulars, if not
supplemental it. Ex. D (providing legal argument to grant a proposed amendment to the bill of
particulars).
17. Leave to amend the bill of particulars should be granted under CPLR Section
3025(b) and (c).
18. Under New York law, it is well settled that in the absence of prejudice, a plaintiff
should be permitted to amend a pleading to add meritorious allegations (C.P.L.R. 3025[b]); A.W. v
County of Oneida, 34 AD3d 1236 [4th Dept 2006]; see also Greco v Five Five Garage Corp., 123
AD2d 422 [2d Dept 1986]; Secore v Allen, 27 AD3d 825 [3d Dept 2006] (permitting plaintiff to
amend his pleading to allege specifically that his loss exceeded "basic economic loss" under C.P.L.R.,
R. 3016(g), where pleadings and disclosure gave defendants notice of the occurrences and plaintiffs
losses, and noting that potential for increased liability of defendants could not qualify as prejudice
warranting denial of the amendment).
19. Further, under New York law, it is well settled that in the absence of prejudice or
surprise, a plaintiff should be permitted to amend a pleading to conform to the evidence adduced.
Indeed, "[l]eave to conform a pleading to the proof pursuant to C.P.L.R. 3025(c) should be freely
granted absent prejudice or surprise resulting from the delay.” Alomia v New York City Tr. Auth.,
292 AD2d 403 [2d Dept 2002]; see also Worthen-Caldwell v Special Touch Home Care Services,
Inc., 78 AD3d 822 [2d Dept 2010].
20. In fact, relative “lateness” is not a barrier to amendment. Worthen-Caldwell., 78
AD3d 822 (granting of amendment was proper despite delay); see also, Dimoulas v Roca, 120 AD3d
5 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
1293 [2d Dept 2014] (granting of leave, on even of trial was proper given totality of circumstances);
Eisenhauer v Bruno, 41 Misc 3d 667 [Sup Ct 2013] (defects in pleading- failure to set forth facts to
support claim of sole ownership-were not a barrier to amendment through trial motion to amend
pleading to conform with proof]; Dickstein v Dogali, 303 AD2d 443 [2d Dept 2003]. Further, there
is no prejudice by an amendment when the defendant has been on notice that catheter care was an
issue. Durant v. Glen Cove Center for Nursing & Rehabilitation. et al., Index No. 703555/16
(Queens Sup. 2019).
21. No surprise or prejudice exists here. Plaintiff properly disclosed all medical evidence
supporting the supplemental/amended bill of particulars which includes medical records,
authorizations, workers compensation records and deposition testimony. There is no trial date in
this action. Currently, very few trials are proceeding due to the COVID-19 pandemic, giving
defense more than enough time to properly prepare any defenses of these claims in the aforesaid.
III. Plaintiff’s Counsel Demonstrated Reasonable Excuse for the Default
22. Mr. Rodger’s affirmation is sufficient evidence to demonstrate a reasonable excuse
for not appearing at the oral argument. 2 Mr. Rodgers explained that he clicked the link and waited a
reasonable period for the host, but the host did not appear. Ex. I; Ex. K (to Reply). Sometimes the
MS Teams program will put the user into a prior meeting room if the program was not exited after
each use. The program likely inadvertently placed Mr. Rodgers in a prior meeting room even
though he clicked the correct link. Defense counsel’s opinion that more is required is unsupported
conjecture. Mr. Rodgers need not attach an affidavit from a technology expert to support a
reasonable excuse. Nor is it necessary or necessarily useful to copy-and-paste a URL. It may never
2A signed exact copy of Mr. Rodger’s affirmation is annexed hereto as Exhibit K.That Mr. Rodgers did not sign the
affirmation is merely administrative error and no reason to discount the reasonable excuse he provided.
See e.g., Kim v
Strippoli, 144 AD3d 982, 984 [2d Dept 2016] (reasonable excuse where defendants submitted evidence from their
insurer demonstrating that the insurer had always intended to fully defend the claim on the defendants' behalf, but, due
to an administrative error, the summons and complaint were not assigned to an attorney).
6 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
be enough to satisfy the Defense counsel that technological issues sometimes arise, and they
constitute a reasonable excuse in this case. Defense counsel cites no precedent to suggest more is
required in this case than Plaintiff’s counsel’s detailed account of what occurred and a technology
issue that arose.
23. As technologies change, there are inevitable hiccups that do not constitute a basis to
dismiss cases. Technological issues have arisen in the past and formed the basis of a reasonable
excuse. See e.g. Baldini v New York City Employees Retirement Sys., 254 AD2d 128 [1st Dept
1998] (holding that a default judgment should have been vacated where there was no evidence in the
record demonstrating a deliberate or intentional default); Watkins v Clark, 260 AD2d 843, 845 [3d
Dept 1999] (“agree with Supreme Court that the proffer by plaintiffs' counsel explaining his
misunderstanding of the adjourn date, coupled with his failure to enter it into his new computerized
calendaring system, constitutes a reasonable excuse especially in light of [his] swift action to cure”);
Berger E. Corp. v Grigg, 6 Misc 3d 76, 77 [App Term 2004] (reasonable excuse where landlord
counsel explained changing from manual diary system to computerized one led to inadvertent failure
to properly diary deadline to move to restore action). Plaintiff proffered a reasonable excuse in this
case.
24. Defense counsel stoops to sarcasm by suggesting “may be (sic) Mr. Rodgers was not
able to keep track of his appearances.” That is not the proffered reason here. Accordingly,
Defendant’s cases in that regard are inapposite distractions.
25. Counsel did not overbook. Counsel also did not lose track of conferences. To the
contrary, he timely clicked a link to appear at the MS Teams meeting but technological interference
occurred. Ex. I; Ex. K (to Reply). He did not misplace a file. Ex. I; Ex. K (to Reply). He did not
state he was “inadvertent” in a conclusory fashion. Ex. I; Ex. K (to Reply). He provided a detailed
account of his steps on the date of occurrence, not a conclusory statement. Ex. I; Ex. K (to Reply).
7 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
After the conference, Mr. Rodgers then promptly contacted the Court, which directed counsel to
make a motion. Ex. I; Ex. K (to Reply). Counsel’s prompt attention to the matter and detailed
affirmation, which provides a reasonable excuse, militates against default.
IV. Conclusion
26. The Court should grant the instant motion.
27. Plaintiff demonstrated that the proposed Supplemental/Amended Bills of Particulars
are well supported in medical records, expert reports, authorizations, and deposition testimony that
were provided before filing the note of issue. Additionally, Plaintiff further demonstrated that she
exchanged authorizations regarding lost earnings and testified at length regarding lost earnings
before the note of issue. The action is meritorious, as shown in the Plaintiff’s testimony and
attached exhibits.
28. Defendants cannot claim any prejudice or surprise arising out of the proposed
Supplemental Bills of Particulars. There is no trial date to adjourn (especially not as the Courts work
through COVID19). There is no surprise. There is no prejudice. Delay was minimal and mere
passage of time is insufficient to preclude the Supplemental/Amended Bills of Particulars.
29. Mr. Rodger’s affirmation is a detailed account which demonstrates a reasonable
excuse. His explanation is supported by precedent. Defendants did not demonstrate any prejudice
or surprise would arise. See generally Discover Bank v Anh Nguyen, 65 Misc 3d 1227(A) [NY City
Ct 2019] (‘[w]hether a proffered excuse [of law office failure] is “reasonable” is a “sui generis
determination to be made by the court based on all relevant factors, including the extent of the
delay, whether there has been prejudice to the opposing party, whether there has been willfulness,
and the strong public policy in favor of resolving cases on the merits’ ” [citations omitted].
‘Documented law office failure may constitute a reasonable excuse’ [citations omitted]”).
8 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
30. This Court should follow the well-settled “strong policy favoring disposition of
actions on the merits” to vacate the default and allow the Supplemental/Amended Verified Bills of
Particulars. See e.g., Sanchez v Serje, 17 AD3d 562, 563 [2d Dept 2005], (“in light of the strong
policy favoring disposition of actions on the merits, and the fact that the plaintiffs demonstrated a
justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause
of action, the Supreme Court improvidently exercised its discretion in granting the motion to
dismiss the complaint”).
31. For the foregoing reasons, this Court should grant Plaintiff’s motion.
Dated: October 14, 2021 By: ___/s/Clifford Tucker _________________
Clifford Tucker, Esq.
9 of 10
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021
10 of 10
Preview
FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------X THALIA AGATHOCLEOUS, Index No.: 703721/2018 Plaintiff, AFFIRMATION IN REPLY -against- 795 FIFTH AVENUE CORPORTATION d/b/a THE PIERRE, Defendant. ---------------------------------------------------------X Clifford Tucker, an attorney duly licensed to practice law in the State of New York, hereby affirms the following under penalty of perjury: 1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for the plaintiff, and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this Reply Affirmation in response to the Opposition papers filed by the defendant and in further support of the instant motion for an Order, pursuant to CPLR §5015(a)(1): a. vacating the default judgment, vis-à-vis, Decision/Order of the Hon. Pam B. Jackman. (dated May 24, 2021) and Judgment (entered on May 25, 2021); b. restoring the Defendants' motion seeking restoring the Defendants’ motion seeking (a) striking the Plaintiff's purported "Supplemental" Verified Bill of Particulars; (b) precluding Plaintiff from offering any evidence at trial in connection with the purported "Supplemental" Verified Bill of Particulars (dated February 3, 2021) pursuant to CPLR § 3126 and deeming the opposition papers and Cross- Motion (dated March 26, 2021) submitted herewith, at Exhibit, to have been served on Defendants' counsel and filed with the Court to CPLR § 3126 and deeming the 1 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 opposition papers and cross- motion (dated March 26, 2021) submitted herewith, at Exhibit, to have been served on Defendants' counsel and filed with the Court; and, c. for such other and further relief as the Court may deem just, proper, and equitable. 3. Plaintiff demonstrated sufficient merit in support of her motion to vacate the default order. Plaintiff’s motion is supported by Plaintiff’s deposition transcript, the underlying motion papers, medical records, and an expert report. Plaintiff also submitted sufficient legal grounds to serve Amended Bills of Particulars if they cannot be supplemented. Leave is freely granted and there is no surprise or prejudice to the Defense. Counsel also demonstrated a reasonable explanation for not appearing at the conference which is supported by a detailed affirmation. The Court should grant Plaintiff’s motion herein. I. Plaintiff Demonstrated Sufficient Merit in Support of her Motion to Vacate the Default Order. 4. Plaintiff demonstrated sufficient merit of the proposed Supplemental Verified Bill of Particulars and Cross-Motion in support thereto. Plaintiff submitted her deposition transcript (Exhibit H), her Affirmation in Support of Cross-Motion and Affirmation in Opposition to Defendant’s Motion with all exhibits attached thereto, (Exhibit D), and Reply Affirmation to the Cross Motion with all exhibits attached thereto (Exhibit F). The aforesaid exhibits include medical records, authorizations, and an expert report. 5. A deposition transcript and supporting documents, including medical records, are sufficient to demonstrate a potentially meritorious claim. Morsly, Inc. v 527 W. 29th St. Corp., 184 AD2d 401, 402 [1st Dept 1992] (among other items, portions of EBT transcript sufficiently established meritorious defense); Jones v New York City Tr. Auth., 293 AD2d 322, 322 [1st Dept 2002] (portions of 50H transcript and medical records established meritorious cause of action); Matter of Allstate Ins. Co. v Hayes, 17 AD3d 669, 671 [2d Dept 2005] (“transcript of the appellant's 2 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 deposition, taken by counsel for Allstate, together with his previously sworn-to notice of claim, sufficiently showed the existence of a meritorious claim”). 1 6. In this case, Plaintiff testified that on January 6, 2018, she slipped and fell on a wet floor inside the Pierre Hotel at 2 East 61st Street in Manhattan. Ex. H (Pg. 21, 22, 32, 35). Because of falling, she sustained injuries. 7. Plaintiff submitted sufficient evidence to demonstrate the merit of a Supplemental Bill of Particulars alleging fracture of the right posterior eighth rib, blunting of a costophrenic angle, pleural fluid, and lost earnings. 8. The purported “new” injuries that plaintiff plead in the Supplemental Verified Bill of Particulars, dated February 3, 2021, were from an X-Ray report from Neighborhood Radiology of the bilateral ribs that was taken on March 1, 2018. Ex. D (referring to internal exhibit D). Plaintiff provided an authorization for films and reports from Neighborhood Radiology in Plaintiff's Responses to Combined Demands, dated June 8, 2018. Ex. D (referring to Exhibit D). Plaintiff also exchanged Ali Guy, M.D. as an expert under CPLR Section 3101(d) which noted that he reviewed an x-ray report of the ribs and his diagnoses included “status post fracture of the eighth rib, now healed.” Ex. D (citing Ex. F). Dr. Guy also referenced the blunted right costophrenic angle raising the possibility of pleural fluids. Ex. D (citing Ex. F). Plaintiff also attached sufficient supporting evidence of Blunted right costophrenic angle and pleural fluid. Ex. D (referring to “X- Ray Ribs Bilateral” on March 1, 2018, by Neighborhood Radiology). Defendant was served with an authorization for the X-Ray report applicable to the claims in response number "1" the Supplemental Verified Bill of Particulars prior to the plaintiff filing her Note of Issue and Certificate of Readiness on September 3, 2019. 1Defendant’s case Byvalets v State, 171 AD3d 1125 [2d Dept 2019] is inapposite. It concerns the Court of Claim’s subject matter jurisdiction over actions against a State official in the course of her official duties and says little about what would constitute a potentially meritorious opposition or reasonable excuse. 3 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 9. Plaintiff testified at her EBT that she sustained injury to her right ribs and felt pain to her ribs. Ex. H (Pg. 44, 69). 10. The foregoing sufficiently demonstrates the merit of the proposed Supplemental Bill of Particulars. The Court should grant this motion. 11. Regarding lost earnings, Plaintiff provided the defense with Plaintiff’s employment file from the Worker’s Compensation Board. Ex. D (referring to internal exhibit D). Defendant was served with authorizations for the employment file and Worker's Compensation Board prior the filing of the Note of Issue and Certificate of Readiness. Ex. D. 12. Defendant is aware the plaintiff missed time from work and is aware of the amount of any lost wages claim. If the defendant wanted a further deposition limited to plaintiff's lost wages claim, the defendant's counsel could have served a notice of deposition or contact this office to schedule it, both of which were not done. 13. Defense counsel did not specify any other questions he would have asked (or believed he could not ask) regarding Plaintiff’s employment or lost earnings. He covered the topic in depth at Plaintiff’s EBT. Defense counsel questioned Plaintiff, at length, about her employment, including amount of pay, work schedule, and amount of time she was employed. Ex. H (Plaintiff’s EBT transcript). Plaintiff testified that she was employed at the time of occurrence and was a freelance florist. Id. She explained her job functions as a florist, the kinds of events she works (e.g., weddings), and she was working as a florist for thirty-eight years. Ex. H (Pg. 14). She also testified about the number of jobs she does, hours she works, and various other job functions. Ex. H. There is no prejudice or surprise that Plaintiff is making a lost earnings claim. 14. The Court should grant Plaintiff’s motion herein because Plaintiff demonstrated sufficient merit to vacate the default order and restore the underlying motion (or allow the Supplemental Bill of Particulars). 4 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 II. Plaintiff Submitted Sufficient Grounds for Leave to Amend or Supplement the Bill of Particulars 15. The words “prejudice” and “surprise” do not appear in Defendant’s Opposition papers because there is no evidence of either. 16. Plaintiff provided sufficient legal basis to amend the bill of particulars, if not supplemental it. Ex. D (providing legal argument to grant a proposed amendment to the bill of particulars). 17. Leave to amend the bill of particulars should be granted under CPLR Section 3025(b) and (c). 18. Under New York law, it is well settled that in the absence of prejudice, a plaintiff should be permitted to amend a pleading to add meritorious allegations (C.P.L.R. 3025[b]); A.W. v County of Oneida, 34 AD3d 1236 [4th Dept 2006]; see also Greco v Five Five Garage Corp., 123 AD2d 422 [2d Dept 1986]; Secore v Allen, 27 AD3d 825 [3d Dept 2006] (permitting plaintiff to amend his pleading to allege specifically that his loss exceeded "basic economic loss" under C.P.L.R., R. 3016(g), where pleadings and disclosure gave defendants notice of the occurrences and plaintiffs losses, and noting that potential for increased liability of defendants could not qualify as prejudice warranting denial of the amendment). 19. Further, under New York law, it is well settled that in the absence of prejudice or surprise, a plaintiff should be permitted to amend a pleading to conform to the evidence adduced. Indeed, "[l]eave to conform a pleading to the proof pursuant to C.P.L.R. 3025(c) should be freely granted absent prejudice or surprise resulting from the delay.” Alomia v New York City Tr. Auth., 292 AD2d 403 [2d Dept 2002]; see also Worthen-Caldwell v Special Touch Home Care Services, Inc., 78 AD3d 822 [2d Dept 2010]. 20. In fact, relative “lateness” is not a barrier to amendment. Worthen-Caldwell., 78 AD3d 822 (granting of amendment was proper despite delay); see also, Dimoulas v Roca, 120 AD3d 5 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 1293 [2d Dept 2014] (granting of leave, on even of trial was proper given totality of circumstances); Eisenhauer v Bruno, 41 Misc 3d 667 [Sup Ct 2013] (defects in pleading- failure to set forth facts to support claim of sole ownership-were not a barrier to amendment through trial motion to amend pleading to conform with proof]; Dickstein v Dogali, 303 AD2d 443 [2d Dept 2003]. Further, there is no prejudice by an amendment when the defendant has been on notice that catheter care was an issue. Durant v. Glen Cove Center for Nursing & Rehabilitation. et al., Index No. 703555/16 (Queens Sup. 2019). 21. No surprise or prejudice exists here. Plaintiff properly disclosed all medical evidence supporting the supplemental/amended bill of particulars which includes medical records, authorizations, workers compensation records and deposition testimony. There is no trial date in this action. Currently, very few trials are proceeding due to the COVID-19 pandemic, giving defense more than enough time to properly prepare any defenses of these claims in the aforesaid. III. Plaintiff’s Counsel Demonstrated Reasonable Excuse for the Default 22. Mr. Rodger’s affirmation is sufficient evidence to demonstrate a reasonable excuse for not appearing at the oral argument. 2 Mr. Rodgers explained that he clicked the link and waited a reasonable period for the host, but the host did not appear. Ex. I; Ex. K (to Reply). Sometimes the MS Teams program will put the user into a prior meeting room if the program was not exited after each use. The program likely inadvertently placed Mr. Rodgers in a prior meeting room even though he clicked the correct link. Defense counsel’s opinion that more is required is unsupported conjecture. Mr. Rodgers need not attach an affidavit from a technology expert to support a reasonable excuse. Nor is it necessary or necessarily useful to copy-and-paste a URL. It may never 2A signed exact copy of Mr. Rodger’s affirmation is annexed hereto as Exhibit K.That Mr. Rodgers did not sign the affirmation is merely administrative error and no reason to discount the reasonable excuse he provided. See e.g., Kim v Strippoli, 144 AD3d 982, 984 [2d Dept 2016] (reasonable excuse where defendants submitted evidence from their insurer demonstrating that the insurer had always intended to fully defend the claim on the defendants' behalf, but, due to an administrative error, the summons and complaint were not assigned to an attorney). 6 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 be enough to satisfy the Defense counsel that technological issues sometimes arise, and they constitute a reasonable excuse in this case. Defense counsel cites no precedent to suggest more is required in this case than Plaintiff’s counsel’s detailed account of what occurred and a technology issue that arose. 23. As technologies change, there are inevitable hiccups that do not constitute a basis to dismiss cases. Technological issues have arisen in the past and formed the basis of a reasonable excuse. See e.g. Baldini v New York City Employees Retirement Sys., 254 AD2d 128 [1st Dept 1998] (holding that a default judgment should have been vacated where there was no evidence in the record demonstrating a deliberate or intentional default); Watkins v Clark, 260 AD2d 843, 845 [3d Dept 1999] (“agree with Supreme Court that the proffer by plaintiffs' counsel explaining his misunderstanding of the adjourn date, coupled with his failure to enter it into his new computerized calendaring system, constitutes a reasonable excuse especially in light of [his] swift action to cure”); Berger E. Corp. v Grigg, 6 Misc 3d 76, 77 [App Term 2004] (reasonable excuse where landlord counsel explained changing from manual diary system to computerized one led to inadvertent failure to properly diary deadline to move to restore action). Plaintiff proffered a reasonable excuse in this case. 24. Defense counsel stoops to sarcasm by suggesting “may be (sic) Mr. Rodgers was not able to keep track of his appearances.” That is not the proffered reason here. Accordingly, Defendant’s cases in that regard are inapposite distractions. 25. Counsel did not overbook. Counsel also did not lose track of conferences. To the contrary, he timely clicked a link to appear at the MS Teams meeting but technological interference occurred. Ex. I; Ex. K (to Reply). He did not misplace a file. Ex. I; Ex. K (to Reply). He did not state he was “inadvertent” in a conclusory fashion. Ex. I; Ex. K (to Reply). He provided a detailed account of his steps on the date of occurrence, not a conclusory statement. Ex. I; Ex. K (to Reply). 7 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 After the conference, Mr. Rodgers then promptly contacted the Court, which directed counsel to make a motion. Ex. I; Ex. K (to Reply). Counsel’s prompt attention to the matter and detailed affirmation, which provides a reasonable excuse, militates against default. IV. Conclusion 26. The Court should grant the instant motion. 27. Plaintiff demonstrated that the proposed Supplemental/Amended Bills of Particulars are well supported in medical records, expert reports, authorizations, and deposition testimony that were provided before filing the note of issue. Additionally, Plaintiff further demonstrated that she exchanged authorizations regarding lost earnings and testified at length regarding lost earnings before the note of issue. The action is meritorious, as shown in the Plaintiff’s testimony and attached exhibits. 28. Defendants cannot claim any prejudice or surprise arising out of the proposed Supplemental Bills of Particulars. There is no trial date to adjourn (especially not as the Courts work through COVID19). There is no surprise. There is no prejudice. Delay was minimal and mere passage of time is insufficient to preclude the Supplemental/Amended Bills of Particulars. 29. Mr. Rodger’s affirmation is a detailed account which demonstrates a reasonable excuse. His explanation is supported by precedent. Defendants did not demonstrate any prejudice or surprise would arise. See generally Discover Bank v Anh Nguyen, 65 Misc 3d 1227(A) [NY City Ct 2019] (‘[w]hether a proffered excuse [of law office failure] is “reasonable” is a “sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’ ” [citations omitted]. ‘Documented law office failure may constitute a reasonable excuse’ [citations omitted]”). 8 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 30. This Court should follow the well-settled “strong policy favoring disposition of actions on the merits” to vacate the default and allow the Supplemental/Amended Verified Bills of Particulars. See e.g., Sanchez v Serje, 17 AD3d 562, 563 [2d Dept 2005], (“in light of the strong policy favoring disposition of actions on the merits, and the fact that the plaintiffs demonstrated a justifiable excuse for the delay in properly responding to the 90-day notice and a meritorious cause of action, the Supreme Court improvidently exercised its discretion in granting the motion to dismiss the complaint”). 31. For the foregoing reasons, this Court should grant Plaintiff’s motion. Dated: October 14, 2021 By: ___/s/Clifford Tucker _________________ Clifford Tucker, Esq. 9 of 10 FILED: QUEENS COUNTY CLERK 10/15/2021 09:15 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 10/15/2021 10 of 10