Sagar v. Son , 617 N.Y.S.2d 409 ( 1994 )

Mercure, J. P.

Appeal from an order of the Supreme Court (Canfield, J.), entered April 19, 1993 in Ulster County, which granted defendant Khun Y. Son’s motion to strike and denied plaintiffs’ cross motion to compel acceptance of plaintiffs’ supplemental bill of particulars.

In this medical malpractice action, plaintiffs served a supplemental bill of particulars dated December 11, 1992 setting forth additional allegations of negligence against defendant Khun Y. Son (hereinafter defendant) and additional elements of damage, including a claim that plaintiff Agatha Sagar, who asserts a derivative cause of action, experienced severe mental and emotional trauma causing adverse physiological and psychological effects as a result of the injury to plaintiff Daniel Sagar. In view of the fact that a supplemental bill of particulars is limited to "claims of continuing special damages and disabilities” (CPLR 3043 [b]), Supreme Court properly struck the additional allegations of negligence asserted in response to question No. 2 of defendant’s demand.

However, we reach a different conclusion with respect to the allegations of additional damages. We agree with plaintiffs that no new cause of action has been stated and even defendant concedes that "certain elements of emotional distress are taken into consideration and are therefore inherent in a derivative claim for loss of consortium on behalf of a spouse in a personal injury action”. If, as asserted by defendant, the amendment is thus unnecessary, no prejudice could possibly result. Under the circumstances, Supreme Court abused its discretion in granting defendant’s motion and denying plaintiffs’ cross motion with respect to the additional allegations of damage. Defendant’s demand for further discovery in the event of our reversal or modification of Supreme Court’s order is a matter that should be addressed to Supreme Court.

Crew III, White and Casey, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendant Khun Y. Son’s motion and denied plaintiffs’ cross motion with regard to the supplemental responses to question Nos. 10 and 12 of said defendant’s demand for a bill of particulars; motion denied and cross motion granted with regard to said responses; and, as so modified, affirmed.