Posey v. Yeracaris

280 A.D.2d 959, 720 N.Y.S.2d 873, 2001 N.Y. App. Div. LEXIS 3457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order unanimously reversed on the law with costs and motion denied. Memorandum: Plaintiff commenced this action on June 26, 1997, alleging, inter alia, that on January 9, 1995, Buffalo General Hospital (defendant), negligently conducted a CT scan of plaintiff’s head “without contrast only” and determined that the results were “unremarkable.” On October 18, 1999, following discovery, service of an amended bill of particulars, and the filing of a note of issue and certificate of readiness, plaintiffs counsel was informed by an expert in neurology that defendant’s failure to recognize plaintiffs emergent condition and to treat plaintiff without delay when she arrived at defendant’s emergency department on January 23, 1995, also constituted negligence on the part of defendant. Plaintiff moved to serve a “further amended bill of particulars” asserting a claim based on the expert’s opinion. Supreme Court erred in granting the motion. The additional claim is barred by the applicable 21/2-year Statute of Limitations (see, CPLR 214-a), which expired on July 23, 1997. This is not a case in which the proposed amendment merely asserts additional theories of recovery and does not allege new facts (see, e.g., Rogers v South Slope Holding Corp., 255 AD2d 898; Presutti v Suss, 254 AD2d 785, 786). Rather, plaintiff is alleging new facts and the breach of duties that do not relate back to the facts previously alleged (see, Darby & Darby v VSI Intl., 95 NY2d 308, 315). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Amend Pleading.) Present — Pine, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.