Opinion
01-01616
Argued April 8, 2002
May 20, 2002.
In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated January 5, 2001, as granted those branches of the separate motions of the defendants New York Methodist Hospital, Aldrick Chu-Fong, and Robert Weiner which were for summary judgment dismissing the complaint insofar as asserted against them.
Miller Goldman, P.C., New York, N.Y. (Linda Goldman and Jonathan Fink of counsel), for appellants.
Geisler Gabriele, LLP, Garden City, N.Y. (Lori A. Marano, Stacy Fitzmaurice, and Robert G. Vizza of counsel), for respondent New York Methodist Hospital.
Martin Clearwater Bell, New York, N.Y. (Patricia D'Alvia and Jeff Lawton of counsel), for respondent Aldrick Chu-Fong.
Gordon Silber, P.C., New York, N.Y. (David Henry Sculnick of counsel), for respondent Robert Weiner.
DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN and BARRY A. COZIER, JJ.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
Contrary to the plaintiffs' contentions, their supplemental bill of particulars was, in fact, an amended bill of particulars since it sought to add a new theory of liability (see CPLR 3043[b]; Barrera v. City of New York, 265 A.D.2d 516, 517-518; Mazzilli v. City of New York, 154 A.D.2d 355, 356-57). As such, the amended bill of particulars was anullity since the plaintiffs served it without leave of the court after the note of issue had been filed (see Golub v. Sutton, 281 A.D.2d 589; Leon v. First National City Bank, 224 A.D.2d 497).
The respondents made a prima facie showing of their entitlement to summary judgment dismissing the complaint insofar as asserted against them, and the plaintiffs failed to come forward with expert medical proof sufficient to establish the existence of a material issue of fact (see Eisen v. Mather Memorial Hospital, 278 A.D.2d 272; O'Shaughnessy v. Hines, 248 A.D.2d 687). Accordingly, the respondents are entitled to summary judgment dismissing the complaint insofar as asserted against them.
RITTER, J.P., FEUERSTEIN, GOLDSTEIN and COZIER, JJ., concur.