The Fourth Department determined Supreme Court should not have considered allegations of a serious injury in a car-accident case which were raised for the first time in a “supplemental verified bill of particulars” submitted in opposition to defendant's summary judgment motion:
… [D]efendant filed the instant motion for summary judgment seeking dismissal of plaintiffs' complaint for failure to meet the serious injury threshold and for failure to incur economic loss exceeding basic economic loss. In opposition to the motion, plaintiffs submitted, inter alia, a “supplemental verified bill of particulars” in which they added an allegation that plaintiff had sustained a serious injury under the significant disfigurement category of serious injury (Insurance Law § 5102 [d]). Defendant objected to plaintiffs' attempt to ” supplement' ” their bill of particulars in opposition to the motion.
Supreme Court granted defendant's motion insofar as it concerned plaintiffs' claims for economic loss, but denied the motion “in all other respects.” In its decision supporting the order, the court wrote that the evidence submitted by plaintiffs raised triable issues of fact on all three categories of serious injury. Only defendant appeals.
We agree with defendant that plaintiffs improperly asserted a “new injury” in their “supplemental verified bill of particulars” (CPLR 3043 [b] …), and that the court erred in considering that new category of serious injury inasmuch as it was raised for the first time in opposition to defendant's motion for summary judgment … . We thus conclude that the claim of significant disfigurement was not cognizable by the court … , that it was error for the court to consider the new injury claim … , and that the court should have disregarded evidence related to that category of serious injury … . Stamps v Pudetti, 2016 NY Slip Op 02272, 4th Dept 3-25-16
NEGLIGENCE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)/CIVIL PROCEDURE (PLAINTIFF'S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT)