Al-Khilewi v. Turman

Mar 22, 2011
Versions:82 A.D.3d 1021
919 N.Y.S.2d 361
919 N.Y.2d 361

The Supreme Court providently exercised its discretion in denying the plaintiff‘s cross motion for leave to amend the bill of particulars. The amendment added a claim of exacerbation of preexisting disc herniations, and would require the defendant to reorient his defense strategy (see Barrera v City of New York, 265 AD2d 516, 518 [1999]; Markarian v Hundert, 262 AD2d 369, 370 [1999]). Moreover, the plaintiff failed to offer a reasonable excuse for his delay in seeking to amend the bill of particulars until over two years after the accident and after the note of issue was filed (see Barrera v City of New York, 265 AD2d at 518; Orros v Yick Ming Yip Realty, 258 AD2d 387 [1999]; Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]).

The defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant‘s motion for summary judgment dismissing the complaint.

Rivera, J.P., Florio, Dickerson, Hall and Roman, JJ., concur.