At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County.  The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester.  Downstate counties are increasingly permitting post-note of issue discovery, however, the Supreme Court in Westchester correctly struck plaintiff’s post-note of issue expert disclosure upon defendant’s motion.

Plaintiff was allegedly injured on December 13, 2009 while disembarking from a bus.  Her original notice of claim, complaint, and bill of particulars were premised on the theory that the bus driver failed to lower the front of bus, causing plaintiff to fall when she disembarked.  After the note of issue was filed, plaintiff served a supplemental response to defendants’ demand for expert disclosure wherein she added an additional theory of liability, namely, that the defendants allowed her to disembark from the bus in an area that contained ice which caused plaintiff to step on ice and fall.  The plaintiff had already testified that she did not know of anything else that caused her to fall other than the height of the bus.

The defendants moved to strike plaintiff’s supplemental responses and the plaintiff cross-moved to amend her pleadings.  While courts generally allow plaintiffs to freely amend their pleadings, the Appellate Division found “where, as here, leave to amend is belatedly sought, judicial discretion should be exercised sparingly.”  Changing a theory of liability so late in the game is extremely prejudicial and as such, the lower court correctly granted defendant’s motion and denied plaintiff’s cross-motion.

While part rules in Kings and Queens County give plaintiffs ample opportunity to engage in post-note of issue discovery, it is refreshing to see a plaintiff appropriately held accountable for a tardy disclosure, which would have been prejudicial to the defendant. Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.