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FILED: QUEENS COUNTY CLERK 05/11/2021 02:40 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 05/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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THALIA AGATHOCLEOUS, Index No.: 703721/2018
Plaintiff, AFFIRMATION
IN OPPOSITION TO
-against- PLAINTIFF'S
CROSS-MOTION AND
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, IN REPLY AND
FURTHER SUPPORT OF
Defendant. MOTION TO STRIKE
AND TO PRECLUDE
__.___ .__¬_ .----------------------X
Gene Novak, Esq., an attorney duly licensed to practice law in the State of New York, hereby
affirms the following under penalty of perjury pursuant to CPLR §2106:
1. I am an associste of McMahon, Martine & Gallagher, LLP, attorneys for the defendant,
795 FIFTH AVENUE CORPORATION, and, as such, I am fully familiar with the pleadings and
proceedings of the within action.
2. This affinnation is submitted in opposition to the plaintiffs cross-motion seeking a
leave to amend bill of particulars and in reply and further support of the defendant's motion seeking an
order:
"Supplemental"
a) striking plaintifPs purported Verified Bill of Particulars dated
February 3, 2021;
b) precluding the plaintiff from offering any evidence at trialin connection with
"Supplemental"
the purported Verified Bill of Particulars dated 3,
February
2021 and alleged fracture of right posterior eight rib, of
blunting
a costophrenic angle, pleural fluid, and the lost eamings claim; and
c) granting such other and further reliefas the court deems just and proper.
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I. The Phi-":"Cross-Motion Seeking To Amend Bill Of Particulars Is Not Acesmpani-I
By The Proposed Amended Bill Of Particulars
3. CPLR §3025(b) provides that "[a]ny motion to amend or supplement pleadings shall
be accompanied by the proposed amended or supplcmcatal pleading clearly showing the changes or
pleading."
additions to be made to the
4. Since the plaintiff filed her cross-motion pursuant to CPLR §3025(b) seeking
amendmeñt of the pleading, such cross-motion must be accompãñied by the proposed amended
pleading, to wit: the proposed Amended Bill of Particulars showing the changes and additions to be
made.
5. Despite the fact that CPLR §3025(b) mandates that the amended pleadiñgs be
submitted along with the motion, the plaintiff failed to comply with CPLR §3025(b); therefore her
cross-motion should be denied in itsentirety.
IL The Defeñdant Has Been Prejudiced Because The Defendant Had No Notice Of The
Newly Alleged Injuries To The PlaintifPs Right Eight Rib Prior To Note ofIssue Was
Filed And Had No That The P'-i=+:vr Had Suffered Any Lost Wages
Discovery Showing
6. Plaintiffs counsel argues that the report from Neighborhood Radiology dated March 1,
2018, should have provided a notice of the plaintifPs newly alleged fracture of right posterior eight rib.
(Please see Affirm. ¶ 4).
7. The report does not state that the plaintiff suffered the fracture of the plaintiff's right
rib."
eight rib but, rather, states that "[q]uestion of partially healed fracture right posterior eight (Please
"D"
see the report of Neighborhood dated March 1, 2018 attached as Exhibit to the
Radiology
plaintiffs cross-motion seeking to submit the amended bill of particulars.)
8. Such report merely indicates that there is a [q]uestion of the fractured right eighth rib,
Mr. Diamcñt did not opine ifthe plaintiff had suffered rib fractues.
actually any
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9. Importantly, records obtaiñêd from Lenox Hill Hospital, where the plaintiff was treated
on the day of the accident, indicate that there was no evidence of any right rib fracture. (Attached
"I"
hereto as Exhibit is a copy of the Xray report of Lenox Hill Hospital dated January 6, 2018).
10. Therefoœ, by reading medical records disclosed, the plaintiff did not sustain any
confumed fracture to her right rib.
I1. Additionally, plaintiff's counsel argues that by providing authorization to obtain
workers'
compensation records, the plaintiff put your affirmant's office on notice that the plaintiff
suffered or claimed injuries to her right rib.(Please see Affirm. ¶ 4).
Workers'
12. Contrary to the plaintiff's counsel contention, the records obtaiñêd from
Compensation Board indicate that the plaintiff claimed that she suffered injury to her right shoulder
"J"
only. (Attached hereto as Exhibit is a copy of the WC C-3 Employee Claim form).
13. Additionally, plaintiff's counsel argues that report by Dr. Guy dated March 5, 2020 put
your affirmant's office on notice that the plaintiff had suffered fracture of her eight rib. (Please see
"F"
Affirm. ¶ 5, and please see thereport by Dr. Guy dated March 5, 2020 attached as Exhibit to the
plaintiff'scross-motion seeking to submit the amended bill of particulars).
14. Although it is unclear when such report dated March 5, 2020 was actually served
because the plaintiff has failed to submit any proof of service of such report, it is certain that such
"F"
report could not been served prior to the filing of the Note of Issue, September 5, 2019. (Exhibit or
"B"
Exhibit to the plaintiff's cross-motion seeking to submit the amended billof particulars).
15. Since the report by Dr. Guy was exchanged at least 5 months after the Note of Issue
plaintiff'
had been filed, counsel cannot argue that your affirmant's office had notice of the newly
alleged injuries to the plaintiff's right rib prior to the filing of the Note of Issue.
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16. As to plaintiff s counsel argument that an authorization for employment records was
provided (please see Affirm. ¶4), such authorization dated June 8, 2018 did not allow for production of
any payroll records, and, although it stated,among other things, that 2018 W-2 form to be provided,
since the authorization was issued on June it did not allow us to obtain the 2018 W-
8, 2018, effectively
"K"
2 form since such form had not been issued at that time. (Attached hereto as Exhibit is a copy of
such employment records authorization).
17. Additionally, plaintiff s counsel maintaiñs that your affirmant's office questioned
plaintiff about her employment at her deposition (please see Affirm. 16) while itis true that the
questions were asked regarding the plaintiffs employment, no questions were asked about time missed
from work and any loss eamings now claimed since plaintifPs counsel stated on the reconi that the lost
wages claim was not made. (Please see Page 21, Lines 16-17 of the Plaintiff s Deposition Transcript
"G"
attached as Exhibit to the plaintifPs motion seeking to submit the amended bill of particulars).
18. As evident from the transcript, after plaintiff s counsel stated that "no claim for lost
eamings"
was made, defendant's counsel moved to asking questions relating to events occurred on the
date of the accident. (Please see Page 21, Lines 16-25 of the PlaintifPs Deposition Transcript attached
"G"
as Exhibit to the plaintiff s motion seeking to submit the amended bill of particulars).
19. Additionally, plaintifPs counsel reliance on Greco v. Five Garage Com., 123 A.D.2d
422 is misplaced. In Greco, the court granted motion to amend complaint to include language into the
complaint saying that the plaintiff sustained a "serious injury". The plaintiffdid not seek to amend the
bill of particulars to allege either new injuries or special damages that had not been alleged prior to the
note of issue. (Id.)
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20. Here, unlike in Greco, the plaintiff seeks the court's permission to submit the amended
billof particulars approximately 18 months after filing of the Note of Issue, alleging new injury and
special damages that were not pleaded prior to filing of the Note ofIssue.
III. The Plaintiff Failed To Set Forth Any Reasonable Escuse For Over 18 Months
Delay In Bringing Motion To Amend Bill Of Particulars And Failed To Show Any Causal
Relationship Between The New Iniuries And The Accident
21. Plaintiff, who fails to set forth in his affidavit sufficient facts in support of motion
to amend the bill of particulars and who offers no reasonable excuse for long delay in bringing
such motion, is not entitled to leave to file amended billof particulars. Gonzales v. Texaco Inc.,
(2nd
71 A.D.3d 666, 668 Dept.) Citing Walter v. LeCesse Corp. 54 A.D.2d 1136, 388 N.Y.S.2d
776.
22. In Walter, the court held that "[w]here a case has long been certified as ready for
trial,judicial discretion in allowing amendments should be discrete, circumspect, prudent and
cautious".
23. "Moreover, when a plaintiff has been guilty of an extended delay in moving to
amend, he or she must provide a reasonable excuse for the delay in making the motion and the
thereof." (2nd
merits Romanello v. Jason, 303 A.D.2d 670, 670, 756 N.Y.S.2d 657, 658 (2003)
Dept.)
24. Here, similarly to Walter and Romanello, the plaintiff has failed to provide any
reasonable excuse for filing her cross-motion seeking court's permission to submit her amêñded
bill of particulars approximately 18 months after the Note of Issue was filed
25. Additionally, the plaintiff must show causal of alleged
relationship newly injury
with the accident. Maniscalco v. 32 A.D.2d (2nd
Coleman, 671, 671, 300 N.Y.S.2d 618, 619
Dept.) Motion for leave to submit amended bill of particulars must be supported affidavit of
by
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person with knowledge of facts and affirmation of the plaintiffs attorney would not be sufficient
to support such motion. Bernas v. Kepner 36 A.D.2d 58, 319 N.Y.S.2d 283. Affidavit of
reasonable excuse for delay in making a motion to amend bill of particulars, together with a
showing of merit in the proposed amendment, is required. Lycett v. Niagara Frontier Transit
Systems, Inc. 81 A.D.2d 1034, 440 N.Y.S.2d 123.
26. Here, the plaintiff failed to make any showing that the new injuries, to wit: the
fracture of right posterior eight rib, blunting of a costophrenic angle, pleural fluid, have any
causal relationship with the subject accident. No affidavits were submitted with the cross-motion
to amend the bill of particulars.
27. Plaintiff has failed to show any merit of claiming new injuries.
28. For the forgoing reasons, the plaintiff's motion should be denied in its entirety,
"Supplemental"
and the defendant's motion seeking to strike the purported Verified Bill of
Particulars dated February 3, 2021 should be granted. And the plaintiff should be precluded from
introducing any evidence regarding a fracture of right posterior eight rib, blunting of
a costophrenic angle, pleural fluid, and the lost earnings claim.
WHEREFORE, itis respectfully requested that this Court issue an Order denying the
plaintiff's cross-motion and granting the Defendant's motion seeking an Order:
"Supplemental"
a) striking plaintiff's purported Verified Bill of Particulars dated
February 3, 2021;
b) precluding the plaintiff from offering any evidence at trial in connection with
"Suppleiliernal"
the purported Verified Bill of Particulars dated 3,
February
2021 and alleged fracture of right posterior eight rib, of
blunting
a costophicñic angle, pleural fluid,and the lostearnings claim; and
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c) granting such other and further relief as the court deems just and proper.
Dated: Brooklyn, New York
May 11, 2021 Yours, etc.,
BY: GENE VAK, ESQ.
McMAH , MARTINE & GALLAGHER, LLP
Attorneys for Defendant
795 FIFTH AVENUE CORPORATION
55 Washington Street, 7th Floor
Brooklyn, New York 11201
(212) 747-1230
File No.: 553.0215
TO: SACCO & FILLAS, LLP
Attorneys for Plaintiff
THALIA AGATHOCLEOUS
7*
31-19 Newtown Avenue, Floor
Astoria, New York 11102
(718) 746-3440
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