Ostrick v. Mount Sinai Hospital

56 A.D.2d 646, 391 N.Y.S.2d 895, 1977 N.Y. App. Div. LEXIS 10773

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1977
• Status: Published

Opinion

In a medical malpractice action, defendants the Mount Sinai Hospital and Gribetz appeal from an order of the Supreme Court, Nassau County, dated June 30, 1976, which granted plaintiff’s motion pursuant to CPLR 3025 (subd [b]) for leave to serve an amended bill of particulars. Order modified by adding thereto a provision that the newly asserted claims of liability in the amended bill of particulars shall be heard before the same or another medical malpractice panel. As so modified, order affirmed, without costs or disbursements. Plaintiff moved for leave to amend her bill of particulars almost 17 months after service of the original bill; this was after the note of issue had been served and after a medical malpractice panel had unanimously recommended "that there is no liability on the part of’ appellants. We agree with Special Term that the appellants have failed to demonstrate prejudice to themselves or gross laches on the part of the plaintiff. Accordingly, leave to amend the bill of particulars was properly granted (see Jones v Public Taxi of Schenectady, 34 AD2d 876). However, since there was a medical malpractice panel finding, made after a hearing, of no liability, the new issues of liability, as framed in the amended bill of particulars, should be heard before the same or another medical malpractice panel. Plaintiff should not be able to argue at the trial that the first panel’s findings were not based upon the present claims. Shapiro, Acting P. J., Titone, Hawkins and O’Connor, JJ., concur.