Colwin v. Bruce Katz, M.D.

90 A.D.3d 516, 934 N.Y.2d 309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 2011
• Status: Published

Opinion

In this medical malpractice action, plaintiff alleges that she suffered personal injuries as a result of defendants’ performance of cosmetic surgery. In her bill of particulars, plaintiff alleges that she sustained, among other things, lymphedema in her right leg resulting in “pain and tenderness in her right leg, knee, ankle and foot, restriction of motion . . . weakness, inability to bear weight, loss of function and the articulations, [and] aggravation of a preexisting latent and asymptomatic degenerative condition.” Defendants moved to compel a further response to their demands, seeking a specific statement as to the injury sustained, i.e., whether the lymphedema was caused or simply aggravated by the alleged malpractice.

“The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial” (Harris v Ariel Transp. Corp., 37 AD3d 308, 309 [2007]; Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265 [1990]). It need not set forth a matter that is evidentiary in nature, which is more appropriately obtained through depositions and expert disclosure (see Harris, 37 AD3d at 309). Not only was it permissible for plaintiff to amplify the nature of her injuries in the bill of particulars (see Anderson v Dainack, 39 AD3d 1065, 1068 [2007]; Behan v Data Probe Intl., 213 AD2d 439, 440 [1995]; cf. Barrera v City of New York, 265 AD2d 516, 518 [1999]), defendants seek evidentiary matter not within the scope of a bill of particulars (see Harris, 37 AD3d at 309). Plaintiffs response, which includes medical records that illuminate her preexisting injuries or condition (see Sobel v Midchester Jewish Ctr., 52 AD2d 944 [1976]), is sufficient to apprise defendants of the nature of the injury (CPLR 3043 [a] [6]). Concur — Saxe, J.P, Sweeny, Acosta, DeGrasse and Abdus-Salaam, JJ.