Summary
In Markarian v Hundert (262 AD2d 369 [2d Dept 1999]), the Appellate Division affirmed the denial of a motion to amend a bill of particulars where the motion was made approximately 11 years after the commencement of the action and several years after the action was certified ready for trial, and where the proposed amendments asserted new theories that could not be not readily gleaned from the original bill of particulars and would cause defendant to completely reconfigure their defense strategy.
Summary of this case from In re Plitnick-SullivanOpinion
Submitted April 19, 1999
June 7, 1999
In an action to recover damages for personal injuries and wrongful death based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Posner, J.), dated May 8, 1998, which denied his motion for leave to serve supplemental and amended verified bill[s] of particulars.
Bruce G. Clark Associates, P.C., New York, N.Y. (Peter L. Gale of counsel), for appellant.
O'Leary O'Leary, Jamaica, N.Y. (Joseph D. Furlong of counsel), for respondent Michael Hundert.
Bartlett, McDonough, Bastone Monaghan, LLP, White Plains, N Y (Edward J. Guardaro, Jr., of counsel), for respondents P. L. Margulies and North Shore University Hospital.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff's motion for leave to serve supplemental and amended bills of particulars was made approximately 11 years after the commencement of this action, and several years after the action had been certified ready for trial by the filing of a note of issue. The amendments consisted of the addition of new theories of liability not readily discernible from the contents of the original bill of particulars, and would require the defendants to reorient their defense strategy. The only excuse offered for the delay in making the motion is based on the assertion that the plaintiff's counsel had only recently consulted with the type of medical expert who, we find, could have been and should have been consulted approximately 10 years earlier. Under these circumstances, the Supreme Court properly denied the motion ( see, CPLR 3042[g]; 22 NYCRR 202.21[d]; Orros v. Yick Ming Yip Realty Corp., 258 A.D.2d 387 [1st Dept., Feb. 23, 1999]; Schwab v. Russel, 231 A.D.2d 820; Keene v. Columbia-Presbyt. Med. Ctr., 214 A.D.2d 430; Lanni v. Sekar, 191 A.D.2d 616; Thompson v. Connor, 178 A.D.2d 752; McLeod v. Duffy, 53 A.D.2d 1011).