Cartagena v. Lee

Cartagena v Lee (2022 NY Slip Op 51215(U)) [*1] Cartagena v Lee 2022 NY Slip Op 51215(U) [77 Misc 3d 129(A)] Decided on December 9, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 9, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ 2021-642 Q C Alexander Cartagena, Appellant, against Stephen K. Lee and Chak L. Lee, Respondents. Mischel & Horn, P.C. (Scott T. Horn and Nicholas Bruno of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondents. Appeal from a judgment of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered November 29, 2019. The judgment, entered upon an oral order of that court made on November 5, 2018 treating a motion by defendants to dismiss the complaint pursuant to, in effect, 22 NYCRR 208.14 (b) (2) as being, in effect, for a directed verdict in favor of defendants pursuant to CPLR 4401, granting the motion and directing the dismissal of the complaint on the merits, dismissed the complaint with prejudice. ORDERED that the judgment is affirmed, without costs. On the morning of November 5, 2018, prior to the start of the damages portion of the trial in this personal injury action, defense counsel orally moved to preclude plaintiff from presenting any evidence related to herniated discs in his thoracic spine. Defense counsel argued that the thoracic spine injury had not been claimed in the bill of particulars and that he had not received a copy of the supplemental bill of particulars, dated September 5, 2018, until "about five minutes ago." Over plaintiff's objection, the court granted defendants' motion. Plaintiff's counsel then stated that plaintiff could not go forward with the trial "without that injury" and the court denied plaintiff's application to adjourn the trial. As a result, defense counsel orally moved "under the uniform rules" to dismiss the complaint because plaintiff was not ready to proceed (see 22 [*2]NYCRR 208.14 [b] [2]). The court stated that the merits of plaintiff's case are being heard. Plaintiff's counsel stated, "At this point, I can't go forward . . . [w]e cannot try the case without one of the main issues coming in." The court confirmed that plaintiff was not proceeding and stated that it was "directing a verdict for defendant[s]" (see CPLR 4401). A judgment dismissing the complaint was entered on November 29, 2019, from which plaintiff appeals. Insofar as plaintiff never moved for leave to serve an amended bill of particulars after the note of issue was filed, the Civil Court properly precluded him, on the morning of the trial, from presenting evidence regarding a new injury which would have required defendants to reorient their defense strategy (see Barrera v City of New York, 265 AD2d 516 [1999]). Pursuant to CPLR 4401, a motion for judgment as a matter of law may be granted prior to the presentation of evidence if the plaintiff has made an admission that has completely compromised his case (see Okunubi v City of New York, 109 AD3d 888 [2013]). Here, after a jury was selected but prior to the presentation of evidence, plaintiff was asked to proceed to trial. Plaintiff's counsel, conceding that she could not establish a prime facie case without the thoracic injury, declined to present any evidence. Accordingly, contrary to plaintiff's argument, dismissal of the complaint pursuant to CPLR 4401 was warranted. Accordingly, the judgment is affirmed. ALIOTTA, P.J., WESTON and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 9, 2022