Bartkus v. New York Methodist Hospital

294 A.D.2d 455, 742 N.Y.S.2d 554, 2002 N.Y. App. Div. LEXIS 5186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2002
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated January 5, 2001, as granted those branches of the separate motions of the defendants New York Methodist Hospital, Aldrick Chu-Fong, and Robert Weiner which were for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

Contrary to the plaintiffs’ contentions, their supplemental bill of particulars was, in fact, an amended bill of particulars since it sought to add a new theory of liability (see CPLR 3043 [b]; Barrera v City of New York, 265 AD2d 516, 517-518; Mazzilli v City of New York, 154 AD2d 355, 356-357). As such, the amended bill of particulars was a nullity since the plaintiffs served it without leave of the court after the note of issue had been filed (see Golub v Sutton, 281 AD2d 589; Leon v First Natl. City Bank, 224 AD2d 497).

The respondents made a prima facie showing of their entitlement to summary judgment dismissing the complaint insofar as asserted against them, and the plaintiffs failed to come forward with expert medical proof sufficient to establish the existence of a material issue of fact (see Eisen v Mather Mem. Hosp., 278 AD2d 272; O’Shaughnessy v Hines, 248 AD2d 687). Accordingly, the respondents are entitled to summary judgment dismissing the complaint insofar as asserted against them. Ritter, J.P., Feuerstein, Goldstein and Cozier, JJ., concur.