Opinion
July 5, 1988
Appeal from the Supreme Court, Kings County (Monteleone, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
In this medical malpractice action, the plaintiffs asserted a claim of lack of informed consent. The defendant's answer contained general denials and set forth the affirmative defenses of the Statute of Limitations and the plaintiff Janice Sollazzo's culpable conduct. Thereafter, the plaintiffs served a demand for a bill of particulars seeking, inter alia, information as to any of the defenses to a claim of lack of informed consent set forth in Public Health Law § 2805-d (4). The defendant made a motion to vacate item No. 7 of the demand for a bill of particulars which the court granted since it found the defendant had not pleaded any of these defenses in his answer. The court went on to find, however, that defendant had waived these defenses by failing to plead them.
We affirm. The defenses contained in Public Health Law § 2805-d (4) are affirmative defenses upon which, if raised by the defendant, the defendant would bear the burden of proof and the plaintiffs would be entitled to a bill of particulars (CPLR 3018 [b]; Forney v. Huntington Hosp., 134 A.D.2d 405; Rubino v. Albany Med. Center Hosp., 117 A.D.2d 909). Since the defendant never pleaded these defenses, the court correctly struck plaintiffs' demand for a bill of particulars as to them. By the same token, however, the court also correctly ruled that by failing to plead these affirmative defenses, the defendant has, under the current procedural posture of this case, waived them (see, Surlak v Surlak, 95 A.D.2d 371, 383; De Lisa v. Amica Mut. Ins. Co., 59 A.D.2d 380, lv granted 43 N.Y.2d 648). We would note that there was no request made by the defendant for leave to amend his answer to assert these defenses (see, Rubino v. Albany Med. Center Hosp., supra), and, therefore, we do not pass upon the propriety of granting such relief (CPLR 3025 [b]). If such a request were to be made and granted, however, the plaintiffs would, of course, be entitled to renew their demand for a bill of particulars as to those defenses (Public Health Law § 2805-d; Forney v Huntington Hosp., supra; Rubino v. Albany Med. Center Hosp., supra). Mangano, J.P., Bracken, Brown and Kunzeman, JJ., concur.