Alcala v. Soundview Health Center

Appellate Division of the Supreme Court of New York

Alcala v. Soundview Health Center

77 A.D.3d 591, 909 N.Y.S.2d 359

Appellate Division of the Supreme Court of the State of New York·Decided October 28, 2010·Published·Cited by 4 cases

Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 14, 2009, which, to the extent appealed from, denied plaintiffs’ motion for leave to amend their bill of particulars, unanimously affirmed, without costs.

Denial of the motion to amend, made 15 years after the alleged malpractice, 12 years after the initial bill of particulars, and more than four years after its first amendment, was a proper exercise of the court’s discretion. Not only did plaintiffs fail to offer a reasonable excuse for this inordinate delay, but the proposed amendment had no merit (see Katechis v Our Lady of Mercy Med. Ctr., 36 AD3d 514, 516 [2007]), propounding material changes that prejudicially introduced a new theory of liability (Vega v Lenox Hill Hosp., 235 AD2d 302 [1997]) that defendant had failed to diagnose an incompetent cervix, inconsistent with the previously alleged theory of failure to diagnose a bacterial infection. Concur—Tom, J.P., Friedman, Catterson, Renwick and Manzanet-Daniels, JJ.

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Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 14, 2009, which, to the extent appealed from, denied plaintiffs’ motion for leave to amend their bill of particulars, unanimously affirmed, without costs.

Denial of the motion to amend, made 15 years after the alleged malpractice, 12 years after the initial bill of particulars, and more than four years after its first amendment, was a proper exercise of the court’s discretion. Not only did plaintiffs fail to offer a reasonable excuse for this inordinate delay, but the proposed amendment had no merit (see Katechis v Our Lady of Mercy Med. Ctr., 36 AD3d 514, 516 [2007]), propounding material changes that prejudicially introduced a new theory of liability (Vega v Lenox Hill Hosp., 235 AD2d 302 [1997]) that defendant had failed to diagnose an incompetent cervix, inconsistent with the previously alleged theory of failure to diagnose a bacterial infection. Concur—Tom, J.P., Friedman, Catterson, Renwick and Manzanet-Daniels, JJ.

Alcala v. Soundview Health Center, 77 A.D.3d 591, 909 N.Y.S.2d 359 (N.Y. Ct. App. 2010).

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Opinion

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