Randazzo v. Our Lady of Mercy Medical Center

284 A.D.2d 158, 726 N.Y.S.2d 638, 2001 N.Y. App. Div. LEXIS 6145

Opinion

—Order, Supreme Court, Bronx County (Paul Victor, J.), entered on or about November 22, 2000, which denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Contrary to defendants’ claim, they were not entitled to preclusion on the ground that plaintiff failed to particularize the category of serious injury in her bill of particulars. Before the sanction of preclusion is granted or a pleading stricken for failure to respond fully to or comply with a demand for a bill of particulars, a showing of willful and contumacious conduct is necessary (see, Kovacs v Castle Restoration & Constr., 262 AD2d 165). Here, defendants never asserted, much less demonstrated, that plaintiff’s failure to respond properly to their demand for a bill of particulars was willful or contumacious. Defendants’ remedy was a motion to compel compliance (id.), which they never made.

Defendants’ motion for summary judgment was properly denied since there was competent objective medical evidence sufficient to raise issues of fact as to whether plaintiff suffered a significant injury to, with permanent consequential limitation of use of, her cervical and lumbosacral spine (see, Verderosa v Simonelli, 260 AD2d 293; Vargas v New York City Tr. Auth., 254 AD2d 175; O’Sullivan v Atrium Bus Co., 246 AD2d 418). Concur — Sullivan, P. J., Nardelli, Mazzarelli, Rubin and Saxe, JJ.