Martinez v. Fields

Appellate Division of the Supreme Court of New York

Martinez v. Fields

74 A.D.3d 653, 902 N.Y.S.2d 361

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 2010

StatusPublished

This text of 74 A.D.3d 653 (Martinez v. Fields) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martinez v. Fields, 74 A.D.3d 653, 902 N.Y.S.2d 361 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J), entered November 21, 2008, which granted defendants’ motion to strike plaintiff’s amended bill of particulars, unanimously affirmed, without costs.

The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiffs cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiffs urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment (see CELR 214-a; Porubic v Oberlander, 274 AD2d 316 [2000]), and plaintiff served her amended bill of particulars two days prior to filing the note of issue (see CELR 3042 [b]), an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint (see Behren v Warren Gorham & Lamont, Inc., 24 AD3d 132 [2005]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.

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Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J), entered November 21, 2008, which granted defendants’ motion to strike plaintiff’s amended bill of particulars, unanimously affirmed, without costs.

The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiffs cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiffs urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment (see CELR 214-a; Porubic v Oberlander, 274 AD2d 316 [2000]), and plaintiff served her amended bill of particulars two days prior to filing the note of issue (see CELR 3042 [b]), an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint (see Behren v Warren Gorham & Lamont, Inc., 24 AD3d 132 [2005]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.

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Bluebook (online)

74 A.D.3d 653, 902 N.Y.S.2d 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-fields-nyappdiv-2010.

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