Opinion
June 16, 1998
Appeal from the Supreme Court, New York County (Sheila Abdus-Salaam, J.).
Defendant's so-called "supplemental" bill of particulars, actually an amended bill of particulars ( compare, CPLR 3042 [b], with CPLR 3043 [b]), alleging for the first time that plaintiff was intoxicated at the time of the accident, was a nullity, since it was served without leave of the court after the filing of the note of issue (CPLR 3042 [b]; Leon v. First Natl. City Bank, 224 A.D.2d 497). In any event, deeming defendants opposition to the motion as a request for leave, we would deny leave because the delay in asserting this new defense until some two months before the trial was scheduled to begin was both prejudicial and inexcusable. The failure to assert this new theory in two prior bills of particulars cannot be excused where defendant admits that prior counsel had been provided with an authorization for the hospital record on which defendant relies for his allegation of intoxication almost immediately upon the commencement of the action, and does not indicate when that hospital record was obtained. And while it is true, as defendant argues, that plaintiff's own medical records and their contents are matters peculiarly within her knowledge, the passage of four years since the hospital test had been taken, and almost two years since the authorization had been provided, severely undermines plaintiff's ability, to conduct an investigation of the test's validity.
Concur — Milonas, J. P., Nardelli, Wallach and Saxe, JJ.