Opinion
17008 Index No. 805657/15 Case No. 2021–03963
12-29-2022
Maria KISIELEWSKA, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant, The New York City Health and Hospitals Corporation, Defendant–Respondent.
Robert J. Epstein, New York, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent
Robert J. Epstein, New York, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jeremy Pepper of counsel), for respondent
Manzanet–Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered September 22, 2021, which granted defendant New York City Health and Hospitals Corporation's motion to strike the new theory of liability as related to a second surgery contained in plaintiff's supplemental bill of particulars, unanimously affirmed, without costs.
The court correctly struck from plaintiff's supplemental bill of particulars the medical malpractice claim that was based on defendant's performance of a second knee surgery, as it raised a new cause of action not pleaded in the complaint (see Napolitano v. Gustavson, 190 A.D.3d 530, 530–531, 135 N.Y.S.3d 843 [1st Dept. 2021] ; Greenwood v. Whitney Museum of Am. Art, 161 A.D.3d 425, 426, 76 N.Y.S.3d 41 [1st Dept. 2018] ). The complaint alleged malpractice with respect to only the prior knee surgery, and the claim arising from the first surgery, that the meniscectomy was improperly performed, was separate and distinct from that arising from the second surgery, that an incorrectly sized implant was used during the knee replacement. Moreover, the newly asserted claim was properly stricken because it was not set forth in the notice of claim (see Fleming v. City of New York, 89 A.D.3d 405, 405, 931 N.Y.S.2d 866 [1st Dept. 2011] ).
We have considered plaintiff's remaining contentions and find them unavailing.