The Second Department, reversing Supreme Court, determined the supplemental bill of particulars served by plaintiff was not an amended bill of particulars (which would have required leave of court) and plaintiff’s failure to appear at a deposition scheduled one day before a mediation (which was not fruitful) did not amount to willful and contumacious conduct and did not, therefore, warrant striking the supplemental bill of particulars:
Pursuant to CPLR 3043(b), “[a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities,” with the proviso that “no new cause of action may be alleged or new injury claimed” (CPLR 3043[b] [emphasis added]). Moreover, the statute provides that supplemental bills of particulars may be served 30 days or more prior to trial without leave of court, and that the opposing party is entitled to an opportunity for further disclosure regarding the continuing damages and disabilities. * * *
While the striking of a pleading or the preclusion of evidence may be appropriate in those instances where parties engage in the chronic or repeated obstruction of discovery, thereby evidencing a willful disregard of legitimate disclosure requests and court orders … , the plaintiff’s failure to appear for a further deposition on the stipulated date does not, under the circumstances presented, rise to such a level of misconduct. Moreover, the record does not demonstrate any other discovery violations by the plaintiff. Accordingly, no willful and contumacious conduct was established … . Alicino v Rochdale Vil., Inc., 2016 NY Slip Op 05966, 2nd Dept 9-14-16
CIVIL PROCEDURE (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/BILL OF PARTICULARS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/WILLFUL AND CONTUMACIOUS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)