Palchik v. Eisenberg

In an action to recover dam [294] ages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (R. Rivera, J.), entered October 1, 1999, which, upon the granting of the defendants’ oral motions to strike the testimony of the plaintiff’s expert witness and pursuant to CPLR 4401 for judgment in their favor as a matter of law, is in favor of the defendants and against her dismissing the complaint. Ordered that the judgment is affirmed, with costs. The Supreme Court properly struck the testimony of the plaintiffs expert, since it went beyond the scope of the allegations contained in the bill of particulars (see, Ciriello v Virgues, 156 AD2d 417). Moreover, the Supreme Court properly granted the defendants’ motion for judgment in their favor as a matter of law since the plaintiff failed to establish a prima facie case of negligence (see, Galler v Prudential Ins. Co., 99 AD2d 720). Thompson, J. P., Sullivan, Krausman and Florio, JJ., concur.