Skerencak v. Fischman ( 1992 )

Order affirmed without costs. Memorandum: Supreme Court properly granted plaintiff’s motion. Plaintiff was entitled to serve a supplemental bill of particulars at least 30 days before trial (CPLR 3043 [b]); Rodriguez v Port Auth., 147 AD2d 625, 626; Portnow v Shelter Rock Pub. Lib., 125 AD2d 382). Moreover, the record establishes that defendant was aware of the additional surgeries as early as May 2, 1988 and was provided with copies of Dr. Myerson’s reports prior to plaintiff’s being examined by defendant’s physician in November, 1989. Therefore, defendant cannot claim either surprise or prejudice (see, Rodriguez v Port Auth., supra). In addition, the affidavit of merit submitted by Dr. Myerson sufficiently established a causal relationship between the original injuries for which plaintiff was treated by defendant and the subsequent surgeries and that such additional surgeries flowed from the treatment rendered by defendant.

All concur, except Boomer and Lawton, JJ., who dissent in part and vote to modify in the following Memorandum.