        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1278
CA 14-00949
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


KENNETH W. SISEMORE, II AND AMANDA SISEMORE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CASEY DONALD LEFFLER AND MULLANE MOTORS, INC.,
DEFENDANTS-APPELLANTS.


CONNORS & VILARDO, LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered December 23, 2013. The
order denied the motion of defendants to, inter alia, strike portions
of plaintiffs’ second supplemental bill of particulars.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Kenneth W. Sisemore, II (plaintiff) in a motor
vehicle accident. Defendants appeal from an order denying their
motion in limine, which sought to strike certain portions of
plaintiffs’ second supplemental bill of particulars regarding the need
for a future surgery and future loss of earnings. According to
defendants, the second supplemental bill of particulars amounted to an
improper amendment rather than merely a “supplement” and therefore
required leave of court. Defendants also sought to preclude
plaintiffs’ experts from testifying at trial due to insufficient
expert disclosure. Alternatively, defendants contended that the
second supplemental bill of particulars and expert disclosure were not
timely served. Initially, we note that this order denying defendants’
motion in limine is appealable because “the order in question is ‘[a]n
order deciding . . . a motion [that] clearly involves the merits of
the controversy . . . and affects a substantial right’ ” (Muhammad v
Fitzpatrick, 91 AD3d 1353, 1353-1354).

     We conclude that Supreme Court properly denied the motion.
“Where ‘the plaintiff[s] seek[] to allege continuing consequences of
the injuries suffered and described in previous bills of particulars,
rather than new and unrelated injuries, the contested bill of
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                                                         CA 14-00949

particulars is a supplemental bill of particulars, rather than an
amended bill of particulars’ ” (Restuccio v Caffrey, 114 AD3d 836,
837; see Kellerson v Asis, 81 AD3d 1437, 1438). Here, plaintiffs’
second supplemental bill of particulars alleged that plaintiff may
require surgery in the future, which could involve anterior C5-6 and
C6-7 discectomy and fusion. In addition, plaintiffs alleged “future
cumulative economic loss” of between approximately $1,299,555.00 and
$1,699,464.00. Plaintiffs had alleged in their prior bills of
particulars that plaintiff may require surgery and that there would be
a claim for future lost earnings. Thus, the portions of the second
supplemental bill of particulars at issue were “an anticipated
sequelae” of the injuries and damages previously alleged and did not
allege new claims (Kellerson, 81 AD3d at 1438).

     Contrary to defendants’ further contention, the court properly
refused to preclude plaintiffs’ experts from testifying at trial due
to insufficient expert disclosure. “[P]reclusion [of expert
testimony] for failure to comply with CPLR 3101 (d) is improper unless
there is evidence of intentional or willful failure to disclose and a
showing of prejudice by the opposing party” (Marchione v Greenky, 5
AD3d 1044, 1045 [internal quotation marks omitted]; see Carlson v
Porter, 53 AD3d 1129, 1132, lv denied 11 NY3d 708), and here
defendants failed to provide any evidence of a willful or intentional
failure to disclose by plaintiffs or any evidence of prejudice (see
Marchione, 5 AD3d at 1045).

     Finally, defendants’ alternative contention that plaintiffs’
second supplemental bill of particulars and expert disclosure were not
timely served in view of the scheduled date of trial was rendered moot
because the trial was adjourned.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
