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FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022
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00033-087918
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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xxxxxx xxxxxxxx on behalf of C.S., an infant under
the age of 18, and xxxxxx xxxxxxxx, Individually,
Plaintiffs,
REPLY AFFIRMATION
-against-
Index No.: 026910/2012
RONALD J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D., SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND,
BERLIN OBGYN ASSOCIATES, HANSSEN
PHARMACEUTICALS, INC. k/n/a ORTHO-MCNEIL-
JANSSEN PHARMACEUTICALS, INC., and ZYDUS
PHARMACEUTICALS USA, INC.,
Defendants.
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ANINA H. MONTE, an attorney duly licensed to practice law in the State of New York,
hereby states the following under the penalty of perjury, pursuant to CPLR § 2106:
1. I am a member of MARTIN CLEARWATER & BELL LLP, attorneys-of-record for
Defendants RONALD TADDEO, M.D. s/h/a RONAL TADEO, M.D., and SHORE
PSYCHIATRIC CENTER (hereinafter, collectively, “Moving Defendants”). I am fully familiar
with the facts and circumstances underlying the present application, based upon a review of the
file maintained by our office.
2. I submit this affirmation in reply to the Affirmation in Opposition of xxxxxx L.
xxxxxxx on behalf of Plaintiff, and in further support of the Moving Defendants’ motion seeking
an Order:
a) Striking Plaintiff’s “Supplemental” Bill of Particulars;
b) Precluding the introduction of any testimony or other evidence regarding the newly-
raised theories, alleged injuries, and special damages in Plaintiff’s “Supplemental”
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Bill of Particulars; and
c) Granting such other and further relief as this Court may deem just and proper.
3. As explained in detail below, Plaintiff has failed to demonstrate that her lately-
served “Supplemental” Bill of Particulars does not constitute an amended bill. Plaintiff merely
repeats over and over that the “Supplemental” Bill of Particulars contains nothing more than
elaborations or updates of injuries and special damages alleged in the original Bill of Particulars,
but repeating so does not make it true. Plaintiff has not acknowledged the specific cognitive and
developmental-related injuries which were not included in her original bill. Furthermore, Plaintiff
has ignored the special damages, including a claim for lost future earning capacity, which were
claimed for the first time nearly a decade after the commencement of this action and less than one
month before trial is scheduled to commence. Plaintiff has not provided any excuse for her failure
to amend her Bill of Particulars in a timely manner, and Moving Defendants are prejudiced by the
inclusion of new alleged injuries and claimed damages. Accordingly, this Court should strike the
“Supplemental” Bill of Particulars and preclude Plaintiff from introducing any testimony or other
evidence regarding the newly-raised theory of liability, alleged injuries, and claimed special
damages.
4. Plaintiff’s “Supplemental” Bill of Particulars alleges a number of cognitive and
developmental-related injuries for the first time:
DELAYS AND DIFFICULTIES WITH GROSS MOTOR SKILLS;
WEAKNESS AND LACK OF STRENGTH;
LEARNING AND DEVELOPMENTAL DELAYS;
COGNITIVE DEFICITS WITH RESPECT TO PROCESSING SPEED AND
WORKING MEMORY;
ATTENTION DEFICIT HYPERACTIVITY DISORDER;
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OPPOSITIONAL DEFIANT DISORDER;
NEED FOR EDUCATIONAL INTERVENTION;
NEED FOR SPEECH, PHYSICAL, AND OCCUPATIONAL THERAPY;
ADJUSTMENT ISSUES;
GENERALIZED ANXIETY DISORDER;
DEPRESSION;
LOSS OF SELF ESTEEM;
PSYCHOLOGICAL SERVICES AND THERAPY;
SLEEP APNEA, SNORING & DROOLING;
NEED FOR FUTURE TREATMENT AND THERAPIES INCLUDING …
NEUROLOGICAL; PSYCHIATRIC …
See NYSCEF No. 157 at ¶6 (Ex. B to Aff. in Support).1 Contrary to Plaintiff’s contention, these
new injuries are not mere “continuing consequences” or “anticipated sequelae” of the injuries
alleged in the original Bill of Particulars. Plaintiff alleged in her original Bill of Particulars that
the Infant Plaintiff sustained a cleft lip and palate, hearing loss and impairment, chronic middle
ear infections, self-consciousness of scarring, inability to feed, and speech impediment, and that
he underwent surgeries to his eardrum, ear tubes, and palate. See NYSCEF No. 156 at ¶6 (Ex. A
to Aff. in Support). Plaintiff also vaguely alleged past and future surgeries and invasive
procedures, hospitalizations, psychological trauma, pain and suffering, and disruption of life goals,
normal childhood, and normal childhood activities. See id. These allegations relate primarily to
injuries to the mouth and ears.
5. Allegations of cognitive and developmental-related injuries are completely absent
1
Papers previously filed electronically with the Court are cited by reference to their document number on NYSCEF.
See CPLR 2214(c).
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from the original Bill of Particulars and cannot reasonably be anticipated based on the original bill.
Plaintiff cannot reasonably expect Moving Defendants to believe that, for instance, learning and
developmental delays, weakness and lack of strength, cognitive deficits, attention deficit
hyperactivity disorder, occupational defiant disorder, and adjustment issues should reasonably
have been anticipated sequelae of injuries to the Infant Plaintiff’s mouth and ears. These cognitive
and developmental-related injuries are entirely new injuries of which Moving Defendants had no
notice that Plaintiff would claim were proximately caused by their alleged negligence.
6. As discussed in the moving papers, Plaintiff is attempting to allege new injuries in
order to shift this action from one about a cleft palate and lip, and associated injuries, to one about
the Infant Plaintiff’s supposed cognitive disabilities, so as to support a lost earnings claim. Plaintiff
contends that she is merely providing an update on continuing special damages, but ignores that
fact that her original Bill of Particulars affirmatively stated that she was not making a claim for
loss of earnings. See NYSCEF No. 156 at ¶¶9, 11 (Ex. A to Aff. in Support). This is an entirely
new category of damages which was never claimed prior to the service of the “Supplemental” Bill
of Particulars.
7. Plaintiff has also added an entirely new category of damages in alleging, for the
first time, $3 million in special damages and expenses for, inter alia, “additional therapies.”
NYSCEF No. 157 at ¶9 (Ex. B to Aff. in Support). Despite seeking over $3 million for the first
time, Plaintiff boldly claims that “[t]here are no newly claimed damages.” NYSCEF No. 164 at
¶16 (Aff. in Opp.). Plaintiff’s contention is specious, and should be rejected by this Court. A
comparison of the original Bill of Particulars and the “Supplemental” Bill of Particulars makes
clear that Plaintiff is attempting to claim new alleged injuries and special damages under the wire
before trial starts. Compare NYSCEF No. 156 at ¶¶6, 9, 11 (Ex. A to Aff. in Support) with
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NYSCEF No. 157 at ¶¶6, 9, 11 (Ex. B to Aff. in Support).
8. Plaintiff’s attempt to distinguish the Second Department’s recent decision in
Blumenthal v. 1979 Marcus Ave. Assoc., LLC (203 A.D.3d 1122 (2d Dep’t 2022)) is futile. The
plaintiff there attempted to amend the bill of particulars to add a new theory of liability and a new
injury. See Blumenthal, 203 A.D.3d at 1122. The Court found that the plaintiff “failed to provide
a sufficient explanation for the delay in moving for leave to amend the bill of particulars until
approximately eight months after the note of issue was filed,” and held that the Supreme Court
properly denied the plaintiff’s motion to amend. Id. at 1123-24. Plaintiff here has likewise sought
to amend her Bill of Particulars to include a new theory of liability and new injuries, except nearly
four years after the Note of Issue was filed, and failed to provide any explanation for her delay.
Blumenthal requires that Plaintiff’s eleventh hour attempt to prejudice Moving Defendants be
denied.
9. The cases relied upon by Plaintiff are unavailing. Rumyacheva v. City of New York
(36 A.D.3d 790 (2d Dep’t 2007)) did not involve a supplemental or amended bill of particulars, as
Plaintiff implies. Rather, in that case, the plaintiff failed to raise a triable issue of fact in opposition
to the defendant New York City Transit Authority’s motion for summary judgment because the
theory of liability raised in the plaintiff’s opposition had not been alleged in the notice of claim.
See Rumyacheva, 36 A.D.3d at 790. The Appellate Division held that the plaintiff could not rely
on the new theory because it “substantially alter[ed] the theory of liability set forth in the notice of
claim.” Id. The Court, seemingly in dicta, noted that the new theory of liability also differed from
the theory set forth in the complaint and the bill of particulars. See id. Unlike in the present case,
the plaintiff in Rumyacheva had not attempted to serve an amended or “supplemental” bill of
particulars a decade into the litigation and on the eve of trial. See also Horn v. Hires, 84 A.D.3d
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1025, 1026 (2d Dep’t 2011) (holding that plaintiff failed to raise a triable issue of fact in opposition
to motion for summary judgment where plaintiff raised new theories of liability after a protracted
delay in presenting those new theories).
10. Plaintiff cites four cases in support of her contention that the “Supplemental” Bill
of Particulars “sets forth the continuing consequences of the same injuries that were alleged in the
original bill of particulars.” NYSCEF Doc. No. 164 at ¶15 (Aff. in Opp.). None of these cases
support Plaintiff’s position. First, Alicino v. Rochdale Vil., Inc. (142 A.D.3d 937 (2d Dep’t 2016))
does not explain what the original bill of particulars alleged or how the supplemental bill of
particulars updated the original bill. The decision merely states that the supplemental bill alleged
“additional medical treatment and physical limitations that he experienced as a result of his alleged
injuries.” Alicino, 142 A.D.3d at 938. Without the specific allegations in the original and
supplemental bills to compare Plaintiff’s to, Alicino is of little to no guidance. The same can be
said for Ali v. JS 39, LLC (2022 N.Y. Slip Op. 04889, 2022 WL 3221646 (2d Dep’t Aug. 10,
2022)), where the Court held that the second supplemental bill of particulars did not allege new
injuries, without a discussion of the allegations contained in the various bills.
11. Tate v. Colabello (58 N.Y.2d 84 (1983)), on the other hand, provides detailed facts
which reveal just how drastic Plaintiff’s proposed amendments are. In Tate, the original bill of
particulars alleged injuries including a dislocation of the spine in the cervical vertebrae, a displaced
and overriding fracture of the right collarbone, and resulting shoulder and collarbone deformation
affecting the chest and spinal areas. See 58 N.Y.2d at 86-87. The supplemental bill alleged
stiffness and atrophy of the right shoulder, cervical muscle spasm, distortion of the right
collarbone, and a consequent lowering of the right shoulder which produced an asymmetrical
looking chest. See id. at 87. The Court of Appeals found that the supplemental bill of particulars
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contained a “more definitive” statement of essentially the same injuries alleged in the original bill.
Id. Here, by contrast, it cannot be said that allegations of cognitive, developmental, and behavioral
issues are a “more definitive” statement (or related at all) to the allegations in Plaintiff’s original
Bill of Particulars alleging injuries to the Infant Plaintiff’s mouth and ears.
12. Sanchez v. City of New York (40 A.D.3d 276 (1st Dep’t 2007)) and Allen v. Braxton
(21 A.D.3d 1272 (4th Dep’t 2005)) similarly undermine Plaintiff’s contention. In Sanchez, which
did not involve a supplemental or amended bill of particulars, but arose in the context of a motion
to vacate a settlement, the First Department found that an infant plaintiff’s injuries, including a
diagnosis of post-traumatic stress disorder (“PTSD”), were known from the outset of the case. See
40 A.D.3d at 277. The Court pointed to the fact that the bill of particulars asserted symptoms
characteristic of PTSD. See id. In Allen, the Fourth Department found that a plaintiff’s
supplemental bill of particulars did not allege a new injury but merely supplied a diagnostic label
to injuries previously alleged. See 21 A.D.3d at 1273. Thus, these cases stand for the proposition
that a later allegation of an injury does not constitute a “new injury” so long as it provides a more
definitive statement or diagnosis of symptoms alleged earlier in the case. See also Khosrova v.
Hampton Bays Union Free Sch. Dist., 151 A.D.3d 953, 953-54 (2d Dep’t 2017) (holding that bill
of particulars was supplemental and not amended where it alleged PTSD and original bill alleged
symptoms of PTSD). Here, allegations of cognitive injuries, developmental and educational
delays, and behavioral disorders are not diagnoses or in any way consistent with the allegations in
the original Bill of Particulars (i.e., a cleft lip and palate and inner ear injuries). Similarly, these
new injuries cannot be said to be “anticipated sequelae” of injuries to the mouth and ears. Cf.
Kellerson v. Asis, 81 A.D.3d 1437, 1438 (4th Dep’t 2011).
13. Plaintiff contends, in effect, that she did not need to supplement her Bill of
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Particulars in a timely manner because “the medical records and authorizations have been
continuously exchanged in this matter, and Dr. Schuster’s report was served seven months ago,
[and] there was no ‘protracted delay in presenting new theories.’” NYSCEF No. 164 at ¶18 (Aff.
in Opp.), quoting Horn, 84 A.D.3d at 1026. Horn, however, does not stand for the proposition
that a plaintiff may amend her Bill of Particulars to add new theories of liability, injuries, and
damages on the eve of trial. In fact, as discussed above, Horn arose in the context of a plaintiff
opposing summary judgment, and does not involve a plaintiff amending or supplementing a bill
of particulars. See 84 A.D.3d at 1025-26. Moreover, even if Horn was applicable, there clearly
was a protracted delay in Plaintiff’s presentation of her new theory, injuries, and damages: nearly
10 years since commencement of this action, 9 years and 8 months since service of the original
Bill of Particulars, and nearly 4 years since filing the Note of Issue.
14. Tellingly, Plaintiff has completely ignored the Second Department’s decisions in
Lorincz v. Castellano (2022 N.Y. Slip Op. 04906, 2022 WL 3221852 (2d Dep’t Aug. 10, 2022))
and Sampson v. Contillo (55 A.D.3d 591, 592 (2d Dep’t 2008)), two cases cited in Moving
Defendants’ moving papers. As explained in greater detail therein, the Second Department has
held that “where the application for leave to amend is made long after the action has been certified
for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent,
and cautious,” and cautioned that when “leave is sought on the eve of trial, judicial discretion
should be exercised sparingly.” Sampson, 55 A.D.3d at 592; see Lorincz, 2022 N.Y. Slip Op.
04906, 2022 WL 3221852, at *1). In addition, in Lorincz and Sampson, the Court found that
delays ranging of three years and four-and-a-half years, respectively, between commencement of
the action and seeking amendment of the bill of particulars were excessive and prejudicial to
defendants. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852, at *2; Sampson, 55
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A.D.3d at 592. A delay of two years between the note of issue being filed and amendment of the
bill of particulars was also prejudicial. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852,
at *2. Furthermore, seeking to amend a bill of particulars “less than two months prior to the date
when the trial was scheduled to commence” was prejudicial as well. Sampson, 55 A.D.3d at 592.
15. The reason Plaintiff ignored these cases is obvious. Her unexplained delay in
seeking to amend her Bill of Particulars dwarfs those of the plaintiffs in Lorincz and Sampson.
Here, Plaintiff has not sought leave to amend her bill of particulars and did not serve her
“Supplemental” Bill of Particulars until 9 years, 11 months, and 16 days after this action was
commenced, nearly 4 years after this action was certified as ready for trial and the Note of Issue
was filed, and less than 1 month before trial is scheduled to commence. The prejudice to Moving
Defendants in light of this delay is paramount. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL
3221852, at *2 (noting that defendants would be prejudiced by amendment to bill of particulars in
that it would require further discovery and possibly the reorientation of defense strategy).
16. Plaintiff’s implicit attempt to argue that Moving Defendants have not been
prejudiced by her fresh effort to allege new injuries and damages, including a claim for a reduction
in future earning capacity, falls flat. Discovery has been complete (as certified by Plaintiff) for
nearly four years. See NYSCEF No. 22. Moving Defendants have not had the opportunity to
conduct discovery on Plaintiff’s new theory of recovery, alleged injuries, or claimed damages.
Moving Defendants have relied on Plaintiff’s representations in her Bill of Particulars as to the
injuries that will be claimed and the damages sought at trial, for over nine years. This includes
assurances that “[n]o claim for loss of earnings” was being made. NYSCEF No. 156 at ¶¶9, 11
(Ex. A to Aff. in Support). Although Plaintiff reserved the right to supplement her damages claims
during the course of litigation, she failed to do so. Allowing Plaintiff to so drastically change her
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position, and claim new injuries and millions of dollars in damages on the eve of trial, would be
exceedingly unfair to Moving Defendants.
17. As an example of the fact that this is a new claim and injury, is the approach that
the plaintiff took to providing a Family Educational Rights and Privacy Act (FERPA)
authorization. Without such an authorization the school district will not allow release of an infant
plaintiff’s individualized education plan. Such records would be crucial evidence as to Plaintiff’s
newly-raised claims of learning and developmental delays, cognitive deficits, and need for
educational intervention, and possibly her claims with respect to attention deficit hyperactivity
disorder, oppositional defiant disorder, and adjustment issues. During the course of discovery,
when Moving Defendants learned of the potential existence of these types of records, a request
was made for this specific authorization, which Plaintiff failed to provide. Given that the injuries
in this case have been entirely centered on the infant’s cleft lip and palate, and there was no
inclusion of a cognitive delay or lost earning claim, Moving Defendants herein relied upon the
original Bill of Particulars, and did not seek additional records of the school, a mental health
provider, or move to compel the production of a FERPA release. Allowing Plaintiff to amend her
bill now, given prior refusal to provide such records, would prejudice Moving Defendants.
18. Finally, even if this Court were to accept Plaintiff’s contention that the bill at issue
merely updates claims on continuing special damages and disabilities (it did not), and was a true
supplemental bill of particulars (it was not), it still must be stricken. As Plaintiff herself recognizes
(see NYSCEF No. 164 at ¶11 (Aff. in Opp.)), a supplemental bill of particulars may be served,
without leave of court at any time, “but not less than thirty days prior to trial.” CPLR 3043(b); see
Ali v. JS 39, LLC, 2022 N.Y. Slip Op. 04889, 2022 WL 3221646, *1 (2d Dep’t Aug. 10, 2022);
Khosrova v. Hampton Bays Union Free Sch. Dist., 151 A.D.3d 953, 954 (2d Dep’t 2017). Here,
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Plaintiff’s unsigned and unverified “Supplemental” Bill of Particulars was served on August 15,
2022. See NYSCEF No. 157 (Ex. B to Aff. in Support). Trial is scheduled to commence in this
action on September 12, 2022, and has been since May 2022. August 15 is less than 30 days before
September 12. Accordingly, this Court must strike the “Supplemental” Bill of Particulars.
CONCLUSION
19. For the reasons set forth above, it is respectfully requested that this Honorable Court
strike Plaintiff’s “Supplemental” Bill of Particulars and preclude the introduction of any testimony
or other evidence regarding the newly-raised theory of causation, alleged injuries, and special
damages contained in Plaintiff’s “Supplemental” Bill of Particulars.
Dated: East Meadow, New York
September 9, 2022
______________________________
Anina H. Monte
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DOCUMENT SPECIFICATIONS STATEMENT
I hereby certify pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme
Court and the County Court that the foregoing document was prepared on a computer using
Microsoft Word.
Type: A proportionally spaced typeface was used, as follows:
Typeface: Times New Roman
Point Size: 12
Word Count: The total number of words in this AFFIRMATION IN SUPPORT,
inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of
authorities, signature block, and this Statement, is 3,165 words.
Dated: East Meadow, New York
September 9, 2022
______________________________
Anina H. Monte
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FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 AHM/rw 00033-087918 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X xxxxxx xxxxxxxx on behalf of C.S., an infant under the age of 18, and xxxxxx xxxxxxxx, Individually, Plaintiffs, REPLY AFFIRMATION -against- Index No.: 026910/2012 RONALD J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, HANSSEN PHARMACEUTICALS, INC. k/n/a ORTHO-MCNEIL- JANSSEN PHARMACEUTICALS, INC., and ZYDUS PHARMACEUTICALS USA, INC., Defendants. ---------------------------------------------------------------------X ANINA H. MONTE, an attorney duly licensed to practice law in the State of New York, hereby states the following under the penalty of perjury, pursuant to CPLR § 2106: 1. I am a member of MARTIN CLEARWATER & BELL LLP, attorneys-of-record for Defendants RONALD TADDEO, M.D. s/h/a RONAL TADEO, M.D., and SHORE PSYCHIATRIC CENTER (hereinafter, collectively, “Moving Defendants”). I am fully familiar with the facts and circumstances underlying the present application, based upon a review of the file maintained by our office. 2. I submit this affirmation in reply to the Affirmation in Opposition of xxxxxx L. xxxxxxx on behalf of Plaintiff, and in further support of the Moving Defendants’ motion seeking an Order: a) Striking Plaintiff’s “Supplemental” Bill of Particulars; b) Precluding the introduction of any testimony or other evidence regarding the newly- raised theories, alleged injuries, and special damages in Plaintiff’s “Supplemental” 4513736 1 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 Bill of Particulars; and c) Granting such other and further relief as this Court may deem just and proper. 3. As explained in detail below, Plaintiff has failed to demonstrate that her lately- served “Supplemental” Bill of Particulars does not constitute an amended bill. Plaintiff merely repeats over and over that the “Supplemental” Bill of Particulars contains nothing more than elaborations or updates of injuries and special damages alleged in the original Bill of Particulars, but repeating so does not make it true. Plaintiff has not acknowledged the specific cognitive and developmental-related injuries which were not included in her original bill. Furthermore, Plaintiff has ignored the special damages, including a claim for lost future earning capacity, which were claimed for the first time nearly a decade after the commencement of this action and less than one month before trial is scheduled to commence. Plaintiff has not provided any excuse for her failure to amend her Bill of Particulars in a timely manner, and Moving Defendants are prejudiced by the inclusion of new alleged injuries and claimed damages. Accordingly, this Court should strike the “Supplemental” Bill of Particulars and preclude Plaintiff from introducing any testimony or other evidence regarding the newly-raised theory of liability, alleged injuries, and claimed special damages. 4. Plaintiff’s “Supplemental” Bill of Particulars alleges a number of cognitive and developmental-related injuries for the first time: DELAYS AND DIFFICULTIES WITH GROSS MOTOR SKILLS; WEAKNESS AND LACK OF STRENGTH; LEARNING AND DEVELOPMENTAL DELAYS; COGNITIVE DEFICITS WITH RESPECT TO PROCESSING SPEED AND WORKING MEMORY; ATTENTION DEFICIT HYPERACTIVITY DISORDER; 2 4513736 2 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 OPPOSITIONAL DEFIANT DISORDER; NEED FOR EDUCATIONAL INTERVENTION; NEED FOR SPEECH, PHYSICAL, AND OCCUPATIONAL THERAPY; ADJUSTMENT ISSUES; GENERALIZED ANXIETY DISORDER; DEPRESSION; LOSS OF SELF ESTEEM; PSYCHOLOGICAL SERVICES AND THERAPY; SLEEP APNEA, SNORING & DROOLING; NEED FOR FUTURE TREATMENT AND THERAPIES INCLUDING … NEUROLOGICAL; PSYCHIATRIC … See NYSCEF No. 157 at ¶6 (Ex. B to Aff. in Support).1 Contrary to Plaintiff’s contention, these new injuries are not mere “continuing consequences” or “anticipated sequelae” of the injuries alleged in the original Bill of Particulars. Plaintiff alleged in her original Bill of Particulars that the Infant Plaintiff sustained a cleft lip and palate, hearing loss and impairment, chronic middle ear infections, self-consciousness of scarring, inability to feed, and speech impediment, and that he underwent surgeries to his eardrum, ear tubes, and palate. See NYSCEF No. 156 at ¶6 (Ex. A to Aff. in Support). Plaintiff also vaguely alleged past and future surgeries and invasive procedures, hospitalizations, psychological trauma, pain and suffering, and disruption of life goals, normal childhood, and normal childhood activities. See id. These allegations relate primarily to injuries to the mouth and ears. 5. Allegations of cognitive and developmental-related injuries are completely absent 1 Papers previously filed electronically with the Court are cited by reference to their document number on NYSCEF. See CPLR 2214(c). 3 4513736 3 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 from the original Bill of Particulars and cannot reasonably be anticipated based on the original bill. Plaintiff cannot reasonably expect Moving Defendants to believe that, for instance, learning and developmental delays, weakness and lack of strength, cognitive deficits, attention deficit hyperactivity disorder, occupational defiant disorder, and adjustment issues should reasonably have been anticipated sequelae of injuries to the Infant Plaintiff’s mouth and ears. These cognitive and developmental-related injuries are entirely new injuries of which Moving Defendants had no notice that Plaintiff would claim were proximately caused by their alleged negligence. 6. As discussed in the moving papers, Plaintiff is attempting to allege new injuries in order to shift this action from one about a cleft palate and lip, and associated injuries, to one about the Infant Plaintiff’s supposed cognitive disabilities, so as to support a lost earnings claim. Plaintiff contends that she is merely providing an update on continuing special damages, but ignores that fact that her original Bill of Particulars affirmatively stated that she was not making a claim for loss of earnings. See NYSCEF No. 156 at ¶¶9, 11 (Ex. A to Aff. in Support). This is an entirely new category of damages which was never claimed prior to the service of the “Supplemental” Bill of Particulars. 7. Plaintiff has also added an entirely new category of damages in alleging, for the first time, $3 million in special damages and expenses for, inter alia, “additional therapies.” NYSCEF No. 157 at ¶9 (Ex. B to Aff. in Support). Despite seeking over $3 million for the first time, Plaintiff boldly claims that “[t]here are no newly claimed damages.” NYSCEF No. 164 at ¶16 (Aff. in Opp.). Plaintiff’s contention is specious, and should be rejected by this Court. A comparison of the original Bill of Particulars and the “Supplemental” Bill of Particulars makes clear that Plaintiff is attempting to claim new alleged injuries and special damages under the wire before trial starts. Compare NYSCEF No. 156 at ¶¶6, 9, 11 (Ex. A to Aff. in Support) with 4 4513736 4 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 NYSCEF No. 157 at ¶¶6, 9, 11 (Ex. B to Aff. in Support). 8. Plaintiff’s attempt to distinguish the Second Department’s recent decision in Blumenthal v. 1979 Marcus Ave. Assoc., LLC (203 A.D.3d 1122 (2d Dep’t 2022)) is futile. The plaintiff there attempted to amend the bill of particulars to add a new theory of liability and a new injury. See Blumenthal, 203 A.D.3d at 1122. The Court found that the plaintiff “failed to provide a sufficient explanation for the delay in moving for leave to amend the bill of particulars until approximately eight months after the note of issue was filed,” and held that the Supreme Court properly denied the plaintiff’s motion to amend. Id. at 1123-24. Plaintiff here has likewise sought to amend her Bill of Particulars to include a new theory of liability and new injuries, except nearly four years after the Note of Issue was filed, and failed to provide any explanation for her delay. Blumenthal requires that Plaintiff’s eleventh hour attempt to prejudice Moving Defendants be denied. 9. The cases relied upon by Plaintiff are unavailing. Rumyacheva v. City of New York (36 A.D.3d 790 (2d Dep’t 2007)) did not involve a supplemental or amended bill of particulars, as Plaintiff implies. Rather, in that case, the plaintiff failed to raise a triable issue of fact in opposition to the defendant New York City Transit Authority’s motion for summary judgment because the theory of liability raised in the plaintiff’s opposition had not been alleged in the notice of claim. See Rumyacheva, 36 A.D.3d at 790. The Appellate Division held that the plaintiff could not rely on the new theory because it “substantially alter[ed] the theory of liability set forth in the notice of claim.” Id. The Court, seemingly in dicta, noted that the new theory of liability also differed from the theory set forth in the complaint and the bill of particulars. See id. Unlike in the present case, the plaintiff in Rumyacheva had not attempted to serve an amended or “supplemental” bill of particulars a decade into the litigation and on the eve of trial. See also Horn v. Hires, 84 A.D.3d 5 4513736 5 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 1025, 1026 (2d Dep’t 2011) (holding that plaintiff failed to raise a triable issue of fact in opposition to motion for summary judgment where plaintiff raised new theories of liability after a protracted delay in presenting those new theories). 10. Plaintiff cites four cases in support of her contention that the “Supplemental” Bill of Particulars “sets forth the continuing consequences of the same injuries that were alleged in the original bill of particulars.” NYSCEF Doc. No. 164 at ¶15 (Aff. in Opp.). None of these cases support Plaintiff’s position. First, Alicino v. Rochdale Vil., Inc. (142 A.D.3d 937 (2d Dep’t 2016)) does not explain what the original bill of particulars alleged or how the supplemental bill of particulars updated the original bill. The decision merely states that the supplemental bill alleged “additional medical treatment and physical limitations that he experienced as a result of his alleged injuries.” Alicino, 142 A.D.3d at 938. Without the specific allegations in the original and supplemental bills to compare Plaintiff’s to, Alicino is of little to no guidance. The same can be said for Ali v. JS 39, LLC (2022 N.Y. Slip Op. 04889, 2022 WL 3221646 (2d Dep’t Aug. 10, 2022)), where the Court held that the second supplemental bill of particulars did not allege new injuries, without a discussion of the allegations contained in the various bills. 11. Tate v. Colabello (58 N.Y.2d 84 (1983)), on the other hand, provides detailed facts which reveal just how drastic Plaintiff’s proposed amendments are. In Tate, the original bill of particulars alleged injuries including a dislocation of the spine in the cervical vertebrae, a displaced and overriding fracture of the right collarbone, and resulting shoulder and collarbone deformation affecting the chest and spinal areas. See 58 N.Y.2d at 86-87. The supplemental bill alleged stiffness and atrophy of the right shoulder, cervical muscle spasm, distortion of the right collarbone, and a consequent lowering of the right shoulder which produced an asymmetrical looking chest. See id. at 87. The Court of Appeals found that the supplemental bill of particulars 6 4513736 6 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 contained a “more definitive” statement of essentially the same injuries alleged in the original bill. Id. Here, by contrast, it cannot be said that allegations of cognitive, developmental, and behavioral issues are a “more definitive” statement (or related at all) to the allegations in Plaintiff’s original Bill of Particulars alleging injuries to the Infant Plaintiff’s mouth and ears. 12. Sanchez v. City of New York (40 A.D.3d 276 (1st Dep’t 2007)) and Allen v. Braxton (21 A.D.3d 1272 (4th Dep’t 2005)) similarly undermine Plaintiff’s contention. In Sanchez, which did not involve a supplemental or amended bill of particulars, but arose in the context of a motion to vacate a settlement, the First Department found that an infant plaintiff’s injuries, including a diagnosis of post-traumatic stress disorder (“PTSD”), were known from the outset of the case. See 40 A.D.3d at 277. The Court pointed to the fact that the bill of particulars asserted symptoms characteristic of PTSD. See id. In Allen, the Fourth Department found that a plaintiff’s supplemental bill of particulars did not allege a new injury but merely supplied a diagnostic label to injuries previously alleged. See 21 A.D.3d at 1273. Thus, these cases stand for the proposition that a later allegation of an injury does not constitute a “new injury” so long as it provides a more definitive statement or diagnosis of symptoms alleged earlier in the case. See also Khosrova v. Hampton Bays Union Free Sch. Dist., 151 A.D.3d 953, 953-54 (2d Dep’t 2017) (holding that bill of particulars was supplemental and not amended where it alleged PTSD and original bill alleged symptoms of PTSD). Here, allegations of cognitive injuries, developmental and educational delays, and behavioral disorders are not diagnoses or in any way consistent with the allegations in the original Bill of Particulars (i.e., a cleft lip and palate and inner ear injuries). Similarly, these new injuries cannot be said to be “anticipated sequelae” of injuries to the mouth and ears. Cf. Kellerson v. Asis, 81 A.D.3d 1437, 1438 (4th Dep’t 2011). 13. Plaintiff contends, in effect, that she did not need to supplement her Bill of 7 4513736 7 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 Particulars in a timely manner because “the medical records and authorizations have been continuously exchanged in this matter, and Dr. Schuster’s report was served seven months ago, [and] there was no ‘protracted delay in presenting new theories.’” NYSCEF No. 164 at ¶18 (Aff. in Opp.), quoting Horn, 84 A.D.3d at 1026. Horn, however, does not stand for the proposition that a plaintiff may amend her Bill of Particulars to add new theories of liability, injuries, and damages on the eve of trial. In fact, as discussed above, Horn arose in the context of a plaintiff opposing summary judgment, and does not involve a plaintiff amending or supplementing a bill of particulars. See 84 A.D.3d at 1025-26. Moreover, even if Horn was applicable, there clearly was a protracted delay in Plaintiff’s presentation of her new theory, injuries, and damages: nearly 10 years since commencement of this action, 9 years and 8 months since service of the original Bill of Particulars, and nearly 4 years since filing the Note of Issue. 14. Tellingly, Plaintiff has completely ignored the Second Department’s decisions in Lorincz v. Castellano (2022 N.Y. Slip Op. 04906, 2022 WL 3221852 (2d Dep’t Aug. 10, 2022)) and Sampson v. Contillo (55 A.D.3d 591, 592 (2d Dep’t 2008)), two cases cited in Moving Defendants’ moving papers. As explained in greater detail therein, the Second Department has held that “where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious,” and cautioned that when “leave is sought on the eve of trial, judicial discretion should be exercised sparingly.” Sampson, 55 A.D.3d at 592; see Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852, at *1). In addition, in Lorincz and Sampson, the Court found that delays ranging of three years and four-and-a-half years, respectively, between commencement of the action and seeking amendment of the bill of particulars were excessive and prejudicial to defendants. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852, at *2; Sampson, 55 8 4513736 8 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 A.D.3d at 592. A delay of two years between the note of issue being filed and amendment of the bill of particulars was also prejudicial. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852, at *2. Furthermore, seeking to amend a bill of particulars “less than two months prior to the date when the trial was scheduled to commence” was prejudicial as well. Sampson, 55 A.D.3d at 592. 15. The reason Plaintiff ignored these cases is obvious. Her unexplained delay in seeking to amend her Bill of Particulars dwarfs those of the plaintiffs in Lorincz and Sampson. Here, Plaintiff has not sought leave to amend her bill of particulars and did not serve her “Supplemental” Bill of Particulars until 9 years, 11 months, and 16 days after this action was commenced, nearly 4 years after this action was certified as ready for trial and the Note of Issue was filed, and less than 1 month before trial is scheduled to commence. The prejudice to Moving Defendants in light of this delay is paramount. See Lorincz, 2022 N.Y. Slip Op. 04906, 2022 WL 3221852, at *2 (noting that defendants would be prejudiced by amendment to bill of particulars in that it would require further discovery and possibly the reorientation of defense strategy). 16. Plaintiff’s implicit attempt to argue that Moving Defendants have not been prejudiced by her fresh effort to allege new injuries and damages, including a claim for a reduction in future earning capacity, falls flat. Discovery has been complete (as certified by Plaintiff) for nearly four years. See NYSCEF No. 22. Moving Defendants have not had the opportunity to conduct discovery on Plaintiff’s new theory of recovery, alleged injuries, or claimed damages. Moving Defendants have relied on Plaintiff’s representations in her Bill of Particulars as to the injuries that will be claimed and the damages sought at trial, for over nine years. This includes assurances that “[n]o claim for loss of earnings” was being made. NYSCEF No. 156 at ¶¶9, 11 (Ex. A to Aff. in Support). Although Plaintiff reserved the right to supplement her damages claims during the course of litigation, she failed to do so. Allowing Plaintiff to so drastically change her 9 4513736 9 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 position, and claim new injuries and millions of dollars in damages on the eve of trial, would be exceedingly unfair to Moving Defendants. 17. As an example of the fact that this is a new claim and injury, is the approach that the plaintiff took to providing a Family Educational Rights and Privacy Act (FERPA) authorization. Without such an authorization the school district will not allow release of an infant plaintiff’s individualized education plan. Such records would be crucial evidence as to Plaintiff’s newly-raised claims of learning and developmental delays, cognitive deficits, and need for educational intervention, and possibly her claims with respect to attention deficit hyperactivity disorder, oppositional defiant disorder, and adjustment issues. During the course of discovery, when Moving Defendants learned of the potential existence of these types of records, a request was made for this specific authorization, which Plaintiff failed to provide. Given that the injuries in this case have been entirely centered on the infant’s cleft lip and palate, and there was no inclusion of a cognitive delay or lost earning claim, Moving Defendants herein relied upon the original Bill of Particulars, and did not seek additional records of the school, a mental health provider, or move to compel the production of a FERPA release. Allowing Plaintiff to amend her bill now, given prior refusal to provide such records, would prejudice Moving Defendants. 18. Finally, even if this Court were to accept Plaintiff’s contention that the bill at issue merely updates claims on continuing special damages and disabilities (it did not), and was a true supplemental bill of particulars (it was not), it still must be stricken. As Plaintiff herself recognizes (see NYSCEF No. 164 at ¶11 (Aff. in Opp.)), a supplemental bill of particulars may be served, without leave of court at any time, “but not less than thirty days prior to trial.” CPLR 3043(b); see Ali v. JS 39, LLC, 2022 N.Y. Slip Op. 04889, 2022 WL 3221646, *1 (2d Dep’t Aug. 10, 2022); Khosrova v. Hampton Bays Union Free Sch. Dist., 151 A.D.3d 953, 954 (2d Dep’t 2017). Here, 10 4513736 10 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 Plaintiff’s unsigned and unverified “Supplemental” Bill of Particulars was served on August 15, 2022. See NYSCEF No. 157 (Ex. B to Aff. in Support). Trial is scheduled to commence in this action on September 12, 2022, and has been since May 2022. August 15 is less than 30 days before September 12. Accordingly, this Court must strike the “Supplemental” Bill of Particulars. CONCLUSION 19. For the reasons set forth above, it is respectfully requested that this Honorable Court strike Plaintiff’s “Supplemental” Bill of Particulars and preclude the introduction of any testimony or other evidence regarding the newly-raised theory of causation, alleged injuries, and special damages contained in Plaintiff’s “Supplemental” Bill of Particulars. Dated: East Meadow, New York September 9, 2022 ______________________________ Anina H. Monte 11 4513736 11 of 12 FILED: SUFFOLK COUNTY CLERK 09/09/2022 12:18 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 09/09/2022 DOCUMENT SPECIFICATIONS STATEMENT I hereby certify pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court that the foregoing document was prepared on a computer using Microsoft Word. Type: A proportionally spaced typeface was used, as follows: Typeface: Times New Roman Point Size: 12 Word Count: The total number of words in this AFFIRMATION IN SUPPORT, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of authorities, signature block, and this Statement, is 3,165 words. Dated: East Meadow, New York September 9, 2022 ______________________________ Anina H. Monte 12 4513736 12 of 12