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Zito v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 6, 2010

CHARLES ZITO, PLAINTIFF-APPELLANT,
v.
CITY OF NEW YORK, DEFENDANT-RESPONDENT,
CONSOLIDATED EDISON COMPANY OF NEW YORK INC., DEFENDANT.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 14, 2009, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend and supplement his bill of particulars and granted defendant City of New York's motion to preclude plaintiff's expert from testifying, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Sweeny, DeGrasse, Richter, Manzanet-Daniels, JJ.

22357/00

The court properly denied plaintiff's motion to amend and supplement his bill of particulars to incorporate a new theory of liability after the filing of the note of issue and absent a reasonable excuse for the delay in moving (Lupo v Pro Foods, LLC, 68 AD3d 607, 608 [2009]). In light of the foregoing, the court properly precluded plaintiff's expert from testifying as to the new theory.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100406

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