Legal Memorandum: Supplemental Bill of Particulars in NY

Issue: Under New York law, how is it determined whether a supplemental bill of particulars sets forth continuing damages of an old claim or raises a new injury or claim, requiring leave of court to amend?

           The applicable standard of review depends on whether a plaintiff was supplementing the bill of particulars to set forth "continuing special damages and disabilities" or whether the supplement was actually an amendment, setting forth a "new cause of action. . . . or new injury . . . ."  N.Y. Civ. Prac. L. & R. (hereafter CPLR) 3043(b) (1991).  This involves the interpretation of the language of the rule, particularly the meaning of the phrase "new cause of action or new injury." 

In Pearce, which involved the later submission of a bill of particulars with a special damage claim for custodial care, the court held that because "plaintiff was not merely updating allegations of special damages previously asserted but was rather adding a wholly new category of special damages, leave to serve the disputed bill was necessary."  Pearce v. Booth Memorial Hosp., 152 A.D. 2d 553, 543 N.Y.S. 2d 157, 158 (1989). 

First, it is impossible to discern from the published opinion in Pearce the precise factual basis of the action or what facts justified the request for custodial care.  Second, in Pearce the bill sought custodial care from the date of injury "to the present."  152 A.D.2d at 554, 543 N.Y.S.2d at 158.  Third, the plaintiff in Pearce did not file the supplemental bill until after jury selection had been aborted and adjournments granted.  152 A.D.2d at 553-54, 543 N.Y.S.2d at 158.         In Tate by McMahon v. Colabello, 58 N.Y.2d 84,