Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard.

In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy.

Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision.

The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial.  This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.