From Casetext: Smarter Legal Research

Miriam Martinez v. Abbie Fields

Appellate Division of the Supreme Court of New York, First Department
Jun 22, 2010
74 A.D.3d 653 (N.Y. App. Div. 2010)

Opinion

June 22, 2010.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November 21, 2008, which granted defendants' motion to strike plaintiffs amended bill of particulars, unanimously affirmed, without costs.

Before: Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.


The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiffs cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiffs urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment ( see CPLR 214-a; Porubic v Oberlander, 274 AD2d 316), and plaintiff served her amended bill of particulars two days prior to filing the note of issue ( see CPLR 3042 [b]), an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint ( see Behren v Warren Gorham Lamont, Inc., 24 AD3d 132).


Summaries of

Miriam Martinez v. Abbie Fields

Appellate Division of the Supreme Court of New York, First Department
Jun 22, 2010
74 A.D.3d 653 (N.Y. App. Div. 2010)
Case details for

Miriam Martinez v. Abbie Fields

Case Details

Full title:MIRIAM MARTINEZ, Appellant, v. ABBIE FIELDS, M.D., et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 22, 2010

Citations

74 A.D.3d 653 (N.Y. App. Div. 2010)
902 N.Y.S.2d 361

Citing Cases

Ishaq v. Godduhn

Furthermore, a bill of particulars is intended to amplify "whatever the pleading pleads" (Linker v County of…

Courtney v. 18th & 8th, LLC

It is well-settled that a bill of particulars may not be used to supply a new cause of action or theory of…