Apikoglu v. Leitman

92 A.D.3d 623, 937 N.Y.2d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2012
• Status: Published

Opinion

The Supreme Court providently exercised its discretion in precluding the plaintiffs expert from testifying that the failure to perform CT scans on the plaintiffs decedent between April 9, 2002, and April 11, 2002, as well as the failure to perform a third surgery, were departures from the accepted standard of care. The plaintiff failed to give notice prior to trial of the specific subject matter of the expert’s testimony setting forth these different theories of recovery, which were not readily discernable from the plaintiffs bills of particulars and the statements in her CPLR 3101 (d) responses (see Ryan v St. Francis Hosp., 62 AD3d 857 [2009]; Durant v Shuren, 33 AD3d 843, 844 [2006]; Dalrymple v Koka, 2 AD3d 769, 771 [2003]).

The plaintiffs remaining contention is without merit. Skelos, J.E, Chambers, Sgroi and Miller, JJ., concur.