STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

CARL REALE,


Plaintiff,


-vs- Index #G-11617


H.B.S.A. INDUSTRIES, INCORPORATED,


Defendant.


-----------------------------------

H.B.S.A. INDUSTRIES, INCORPORATED,


Third Party Plaintiff,


-vs-


V & N CONSTRUCTION COMPANY, INC.,


Third Party Defendant.


 



PAUL WILLIAM BELTZ, P.C.

(Russell T. Quinlan, Esq.

of Counsel) for Plaintiff



MCGEE & GELMAN

(F. Brendan Burke, Jr., Esq.

of Counsel) for H.B.S.A.


KRIEGER AND GRAFFEO

(Sebastian P. Graffeo, Esq.

of Counsel) for Third Party

Defendant V & N Construction



FURTHER DECISION AND ORDER



GERACE, J.


This Court rendered a decision in the above captioned

matter pursuant to a motion before it on 2/28/95.

Subsequently, the attorneys sent various submissions to the

Court concerning additional related issues.

So that there is no question, the Court has allowed

those parts of the 9/16/94 supplemental bill of particulars

that deal with 12 NYCRR 23 in para. 1 and specific negligence

allegations in para. 2. pursuant to the earlier decision of

this Court.

Also, this Court denied para. 3 and 4 in their entirety

from the 9/16/94 bill.

The supplemental bill of particulars of 11/17/94 is

allowed.

It is this Court's decision to allow as well the

supplemental bills of 8/24/94 and 10/4/94. Each of these

last three mentioned bills are allowed due to the strength of

the submissions from Dr. Sharma.

It is true that the doctor's submissions are

problematical. They were not received until February 1995,

more than two months after oral arguments of the motion. The

motion was first brought in October 1994. The late

submission led to various telephone conferences with the

Court and correspondence prompting this decision. The only

reason offered for the delay is a statement concerning Dr.

Sharma's busy schedule.

While the submission is untimely, defendant did not

object for over a month and subsequent to the Court's written

decision of 2/28/95. To deny the doctor's submission would

be extremely prejudicial to plaintiff since it relates the

later injury to the earlier injury and ties in the problem

with the other knee as well.

The defendant has offered no opposition to the actual

contents of Dr. Sharma's submission, only opposition to its

procedural history. The submission does provide proper

medical documentation of the new injuries alleged. Much of

the contents concern evidence already before the Court

through medical reports and records.

Due to plaintiff's untimely submission from Dr. Sharma,

plaintiff shall pay $100.00 motion costs to each defendant.

Dated: June 8, 1995

Mayville, New York



 

JOSEPH GERACE

Justice of Supreme Court