ORDERED that the cross appeal by the plaintiff Doris Warner from the resettled judgment is dismissed on the ground that she is not aggrieved thereby (see, CPLR 5511); and it is further, ORDERED that the cross appeal by the plaintiff Jeffrey Warner from so much of the resettled judgment as awarded him the amount of only $20,000 for future medical expenses is dismissed as he is not aggrieved by that portion of the judgment (see, CPLR 5511); and it is further, ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the resettled judgment; and it is further, ORDERED that the resettled judgment is reversed insofar as reviewed, on the law, the judgment dated December 10, 1999, is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of all damages except damages for past and future medical expenses, with costs to abide the event. The jury's findings of fact as to liability are affirmed.
The Supreme Court providently exercised its discretion in granting the defendants' motion for leave to amend their answer to include a collateral estoppel defense (see, Bomar v. Lane, 265 A.D.2d 519). However, the Supreme Court properly denied the defendants' motion to dismiss the complaint based on that defense. While a prior administrative decision denying the injured plaintiff "performance of duty disability retirement" precluded the plaintiffs from claiming that the injured plaintiff was disabled as a result of the accident, it did not preclude them from claiming that he was injured (see, Kenny v. New York City Tr. Auth., 275 A.D.2d 639; Fandy Corp. v. Lung-Fong Chen, 265 A.D.2d 450; cf., 9-10 Alden Place, LLC v. Chen, 279 A.D.2d 618).
Moreover, the Supreme Court properly denied the plaintiffs' motion for leave to amend their bill of particulars to allege aggravation of a pre-existing condition (see, Danne v. Otis Elevator Corp., 276 A.D.2d 581). Further, we note that after the Supreme Court denied the plaintiffs' motion for leave to amend their bill of particulars, the plaintiffs improperly served an amended complaint which did allege such injury. Thereafter, however, the plaintiffs elected instead to proceed on their original complaint. Therefore, the plaintiffs cannot now complain that they should have been allowed to prove that injury.
Additionally, the instructions given to the jury on the issue of the parties' respective burdens of proof were adequate (cf., Torem v. 564 Cent. Ave. Rest., 133 A.D.2d 25).
The Supreme Court erred, however, in refusing to allow the defendants to introduce the testimony of Dr. Zimba, a physician who had treated the injured plaintiff. The defendants were not required to provide prior notice of his testimony pursuant to CPLR 3101(d) (see, Krinsky v. Rachleff, 276 A.D.2d 748; Mantuano v. Mehale, 258 A.D.2d 566). Accordingly, the defendants are entitled to a new trial as to damages insofar as indicated.
The parties remaining contentions are either without merit or need not be reached in light of our determination.