Wilkinson v. British Airways

Order, Supreme Court, New York County (Leland De-Grasse, J.), entered December 13, 2002, which, in an action for assault, denied plaintiffs motion to supplement his responses to interrogatories so as to claim aggravation of an ulcer in addition to aggravation of a brain condition and posttraumatic stress disorder, unanimously affirmed, without costs.

Plaintiffs request for leave to allege aggravation of an ulcer, *506made some 19 months after the filing of the note of issue and almost seven years after the alleged assault, was properly denied in the absence of an explanation for the failure earlier to allege the ulcer. This is particularly the case here where the ulcer was treated as far back as 12 years prior to the alleged assault, and was mentioned, but not claimed as an injury, in plaintiffs physician’s previous reports and deposition (see Bertan v Richmond Mem. Hosp. & Health Ctr., 106 AD2d 362 [1984]). Concur — Nardelli, J.P., Andrias, Sullivan, Rosenberger and Wallach, JJ.