KENNEY v. AMODEI

Judgment unanimously reversed, on the law, without costs, and new trial granted. Memorandum: The trial court erred in receiving, over defendant's objection, testimony from one of plaintiff's treating physicians, based on his examination conducted the day before trial commenced, that plaintiff suffered a permanent neck injury. This testimony should have been precluded because plaintiff did not mention this specific injury in her bill of particulars (CPLR 3042 [c]), and did not timely disclose the doctor's findings as required by this department's rules (22 NYCRR 1024.25 [c], [e]; Cramer v. Toledo Scale Co., 89 A.D.2d 1059, 1060). Had the doctor's testimony properly been excluded, plaintiff may not have been able to establish that she suffered a "serious injury" (see, Insurance Law § 5102 [d]; Licari v. Elliott, 57 N.Y.2d 230; cf. Mooney v. Ovitt, 100 A.D.2d 702, 704).