Preview
FILED: SUFFOLK COUNTY CLERK 03/15/2023
03/10/2023 07:58
12:04 AM
PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 178
168 RECEIVED NYSCEF: 03/15/2023
03/10/2023
SS/md
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 NOTICE OF ENTRY
the age of 18, and xxxxxx xxxxxxxx, Individually,
Index No.: 026910/2012
Plaintiffs,
-against-
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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COUNSELORS:
PLEASE TAKE NOTICE, that the within is a true copy of an order dated March 9, 2023
of the Honorable Justice Paul J. Baisley, Jr. and duly entered in the office of the clerk of the within
named court on March 10, 2023.
Dated: East Meadow, New York
March 10, 2023
Yours, etc.
MARTIN CLEARWATER & BELL LLP
By ___________________________
Anina H. Monte
Attorneys for Defendant
RONALD J. TADDEO, M.D. s/h/a
RONALD J. TADEO, M.D. and
SHORE PSYCHIATRIC CENTER
90 Merrick Avenue, Suite 401
East Meadow, NY 11554
(516) 222-8500
TO:
NAPOLI SHKOLNIK, PLLC
4719720
1 of 4
FILED: SUFFOLK COUNTY CLERK 03/15/2023
03/10/2023 07:58
12:04 AM
PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 178
168 RECEIVED NYSCEF: 03/15/2023
03/10/2023
400 Broadhollow Road, Suite 305
Melville, NY 11747
JCiaccio@NapoliLaw.com
HGriffith@NapoliLaw.com
4719720
2
2 of 4
FILED: SUFFOLK COUNTY CLERK 03/15/2023
03/10/2023 07:58
10:53 AM
12:04 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 178
167
168 RECEIVED NYSCEF: 03/15/2023
03/10/2023
Shod lom Order
SUPREME COURT. STATE OF NEW YORK
CALENDAR CONTROL PART - SUFFOLK COUNTY
PRESENT: INDEX NO.: 02691012012
HON. PAUL J. BAISLEY, JR., J.S.C. CALENDAR NO.: 201 801678MM
X MOTION DATE: 9-12-22
xxxxxx xxxxxxxx on behalf of C.S., an infant MOTTON SEQ. NO. 01o-MG
under the age of 18, and xxxxxx xxxxxxxx,
Individually, PLAINTIFF'S ATTORNEY:
Plaintiffs. NAPOLI SHKOLNIK, PLLC
-agalnst- DEFENDANTS' ATTORNEY:
RONALD J. TADEO, M.D., RICHARD PITCH, MARTIN CLEARWATER & BELL LLP
M.D., SCOTT BERLIN, M.D., SHORE
PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY
OF LONG ISLAND, BERLIN OBGYN
ASSOCIATES, JANSSEN PHARMACEUTICALS,
INC. and ZYDUS PHARMACEUTICALS (USA),
INC.,
Defendants.
X
ORDERED that the motion (Mot. Seq. 010) by defendants Ronald Taddeo, M.D. s,4Va
Ronald Tadeo, M.D. and Shore Psychiatric Center for an order striking the plaintiffs' Verified
Supplemental Bill of Particulars dated August 15,2022, and precluding the plaintifffrom
introducing evidence at trial regarding the newly raised theories and alleged injuries set forth
therein is granted.
This action to recover damages for medical malpractice was commenced in2012 and
claims that the defendants negligent acts and omissions took place from 2007 through 2009.
Following the completion of discovery, the plaintiffs filed a note ofissue and certificate of
readiness for trial on September 12,2018. Nearly four years later the ptaintiffs served what was
denominated as a Verified Supplemental Bill of Particulars dated August 15,2022. The
remaining defendants now move to strike the Verified Supplemental Bill ofParticulars dated
August 15, 2022, claiming that in reality it is an amended bill ofparticulars served by the
plaintiffs without leave of court in violation of CPLR 3042(b). Plaintiffs oppose the motion
contending that the Verified Supplemental Bill of Particulars dated August 15,2022, does not set
forth any new injuries or theories ofliability and that it was properly served as a supplemental
bill ofparticulars pursuant to CPLR 3043(b).
CPLR 3043(b) provides, in relevant part:
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FILED: SUFFOLK COUNTY CLERK 03/15/2023
03/10/2023 07:58
10:53 AM
12:04 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 178
167
168 RECEIVED NYSCEF: 03/15/2023
03/10/2023
"A party may serve a supplemental bill ofparticulars with respect
to claims of continuing special damages and disabilities without
leave ofcourt at any time, but not less than thirty days prior to trial.
Provided however that no new cause ofaction may be alleged or
new injury claimed . . ."
Here, a line by line comparison of the original bill of particulars served by the plaintiffs in
2012 with the Verihed Supplemental Bill ofParticulars dated August 15,2022, reveals that the
Verified Supplemental Bill of Particulars contains numerous newly claimed injuries that were not
set forth in the original bill ofparticutars. For example, the original bill of particulars does not
set forth any dental injury, cognitive injury, or psychologicat injury. Contrary to the plaintifls
contention, the newly claimed injuries in the Verified Supplemental Bill of Particulars do not
simply amplifu injuries previously set out in the original bill of particulars and it is clear that the
Verified Supplemental Bill of Particulars is actually an amended bill of particulars, as it sets forth
new and distinct injuries not previously claimed by the plaintiffs (see Barrera v City of New
York,265 AD2d 516, 517-518 [2d Dept. 1999]). As such, the amended bill of particulars was a
nullity since the plaintiff served it without leave of court nearly four years after the filing of the
note of issue (Bartkus v New York Methodist Hosp. ,294 AD2d 455 [2d Dept 2002]; Ellvichi v
Flushing Hosp. Med. Ctr.,293 AD2d706 [2dDept2002]; Leonv First Natl. City Bank,224
AD2d 497 ,498 [2d Dept 1996]). Under such circumstances, it would be an improvident exercise
ofdiscretion to allow the plaintiffto claim these new damages at trial (see Kraycar Mondhan,49
AD3d 507, 508 [2d Dept 2008]). Therefore, the motion is granted to the extent set forth above.
'/-r*A;L
Dated: March ,2023
?
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HON.PA[&lBArsrEYJR
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Preview
FILED: SUFFOLK COUNTY CLERK 03/15/2023 03/10/2023 07:58 12:04 AM PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 178 168 RECEIVED NYSCEF: 03/15/2023 03/10/2023 SS/md 00033-087918 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X xxxxxx xxxxxxxx on behalf of C.S., an infant under NOTICE OF ENTRY the age of 18, and xxxxxx xxxxxxxx, Individually, Index No.: 026910/2012 Plaintiffs, -against- 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 COUNSELORS: PLEASE TAKE NOTICE, that the within is a true copy of an order dated March 9, 2023 of the Honorable Justice Paul J. Baisley, Jr. and duly entered in the office of the clerk of the within named court on March 10, 2023. Dated: East Meadow, New York March 10, 2023 Yours, etc. MARTIN CLEARWATER & BELL LLP By ___________________________ Anina H. Monte Attorneys for Defendant RONALD J. TADDEO, M.D. s/h/a RONALD J. TADEO, M.D. and SHORE PSYCHIATRIC CENTER 90 Merrick Avenue, Suite 401 East Meadow, NY 11554 (516) 222-8500 TO: NAPOLI SHKOLNIK, PLLC 4719720 1 of 4 FILED: SUFFOLK COUNTY CLERK 03/15/2023 03/10/2023 07:58 12:04 AM PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 178 168 RECEIVED NYSCEF: 03/15/2023 03/10/2023 400 Broadhollow Road, Suite 305 Melville, NY 11747 JCiaccio@NapoliLaw.com HGriffith@NapoliLaw.com 4719720 2 2 of 4 FILED: SUFFOLK COUNTY CLERK 03/15/2023 03/10/2023 07:58 10:53 AM 12:04 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 178 167 168 RECEIVED NYSCEF: 03/15/2023 03/10/2023 Shod lom Order SUPREME COURT. STATE OF NEW YORK CALENDAR CONTROL PART - SUFFOLK COUNTY PRESENT: INDEX NO.: 02691012012 HON. PAUL J. BAISLEY, JR., J.S.C. CALENDAR NO.: 201 801678MM X MOTION DATE: 9-12-22 xxxxxx xxxxxxxx on behalf of C.S., an infant MOTTON SEQ. NO. 01o-MG under the age of 18, and xxxxxx xxxxxxxx, Individually, PLAINTIFF'S ATTORNEY: Plaintiffs. NAPOLI SHKOLNIK, PLLC -agalnst- DEFENDANTS' ATTORNEY: RONALD J. TADEO, M.D., RICHARD PITCH, MARTIN CLEARWATER & BELL LLP M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS (USA), INC., Defendants. X ORDERED that the motion (Mot. Seq. 010) by defendants Ronald Taddeo, M.D. s,4Va Ronald Tadeo, M.D. and Shore Psychiatric Center for an order striking the plaintiffs' Verified Supplemental Bill of Particulars dated August 15,2022, and precluding the plaintifffrom introducing evidence at trial regarding the newly raised theories and alleged injuries set forth therein is granted. This action to recover damages for medical malpractice was commenced in2012 and claims that the defendants negligent acts and omissions took place from 2007 through 2009. Following the completion of discovery, the plaintiffs filed a note ofissue and certificate of readiness for trial on September 12,2018. Nearly four years later the ptaintiffs served what was denominated as a Verified Supplemental Bill of Particulars dated August 15,2022. The remaining defendants now move to strike the Verified Supplemental Bill ofParticulars dated August 15, 2022, claiming that in reality it is an amended bill ofparticulars served by the plaintiffs without leave of court in violation of CPLR 3042(b). Plaintiffs oppose the motion contending that the Verified Supplemental Bill of Particulars dated August 15,2022, does not set forth any new injuries or theories ofliability and that it was properly served as a supplemental bill ofparticulars pursuant to CPLR 3043(b). CPLR 3043(b) provides, in relevant part: 1 of 4 3 2 FILED: SUFFOLK COUNTY CLERK 03/15/2023 03/10/2023 07:58 10:53 AM 12:04 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 178 167 168 RECEIVED NYSCEF: 03/15/2023 03/10/2023 "A party may serve a supplemental bill ofparticulars with respect to claims of continuing special damages and disabilities without leave ofcourt at any time, but not less than thirty days prior to trial. Provided however that no new cause ofaction may be alleged or new injury claimed . . ." Here, a line by line comparison of the original bill of particulars served by the plaintiffs in 2012 with the Verihed Supplemental Bill ofParticulars dated August 15,2022, reveals that the Verified Supplemental Bill of Particulars contains numerous newly claimed injuries that were not set forth in the original bill ofparticutars. For example, the original bill of particulars does not set forth any dental injury, cognitive injury, or psychologicat injury. Contrary to the plaintifls contention, the newly claimed injuries in the Verified Supplemental Bill of Particulars do not simply amplifu injuries previously set out in the original bill of particulars and it is clear that the Verified Supplemental Bill of Particulars is actually an amended bill of particulars, as it sets forth new and distinct injuries not previously claimed by the plaintiffs (see Barrera v City of New York,265 AD2d 516, 517-518 [2d Dept. 1999]). As such, the amended bill of particulars was a nullity since the plaintiff served it without leave of court nearly four years after the filing of the note of issue (Bartkus v New York Methodist Hosp. ,294 AD2d 455 [2d Dept 2002]; Ellvichi v Flushing Hosp. Med. Ctr.,293 AD2d706 [2dDept2002]; Leonv First Natl. City Bank,224 AD2d 497 ,498 [2d Dept 1996]). Under such circumstances, it would be an improvident exercise ofdiscretion to allow the plaintiffto claim these new damages at trial (see Kraycar Mondhan,49 AD3d 507, 508 [2d Dept 2008]). Therefore, the motion is granted to the extent set forth above. '/-r*A;L Dated: March ,2023 ? 4 t.sc Tr HON.PA[&lBArsrEYJR 2 of 4 4 2