Al-Khilewi v. Turman , 919 N.Y.2d 361 ( 2011 )

The Supreme Court providently exercised its discretion in denying the plaintiffs cross motion for leave to amend the bill of particulars. The amendment added a claim of exacerbation of preexisting disc herniations, and would require the defendant to reorient his defense strategy (see Barrera v City of New York, 265 AD2d 516, 518 [1999]; Markarian v Hundert, 262 AD2d 369, 370 [1999]). Moreover, the plaintiff failed to offer a reasonable excuse for his delay in seeking to amend the bill of particulars until over two years after the accident and after the note of issue was filed (see Barrera v City of New York, 265 AD2d at 518; Orros v Yick Ming Yip Realty, 258 AD2d 387 [1999]; Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]).

The defendant established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.E, Florio, Dickerson, Hall and Roman, JJ., concur.