PEREZ v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2024)

Orders, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about January 19, 2023 and June 6, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to amend the bills of particulars, and denied plaintiff's motion for leave to amend the complaint and to renew the motion for leave to amend the bills of particulars, unanimously affirmed, without costs.

In this medical malpractice action commenced in 2010, the motion court providently denied plaintiff's motion for leave to amend the bills of particulars (see Stovall v. Lenox Hill Hosp., 200 A.D.3d 570, 571, 155 N.Y.S.3d 333 [1st Dept. 2021]).  Plaintiff was required to proffer a reasonable excuse for her delay, even though a note of issue had not been filed (see Pecora v. Pecora, 204 A.D.3d 611, 612, 168 N.Y.S.3d 26 [1st Dept. 2022]).  Plaintiff's excuse that she only learned of the new claims after the parties’ depositions was not reasonable, as she had the medical records which should have apprised her of the claims (see Frye v. Montefiore Med. Ctr., 100 A.D.3d 28, 39, 951 N.Y.S.2d 4 [1st Dept. 2012]).

Defendants established that they would be prejudiced by the late amendment, as they had already expended large sums of money defending the action as pleaded (see Biondi v. Behrman, 149 A.D.3d 562, 564, 53 N.Y.S.3d 265 [1st Dept. 2017], lv dismissed and denied 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017]).  They would also be prejudiced because discovery on the original claims had been closed, a date for filing the note of issue had been set, and plaintiff sought to assert the new claims more than a decade after filing the original complaint (see Jaliman v. D.H. Blair & Co. Inc., 105 A.D.3d 646, 647, 964 N.Y.S.2d 112 [1st Dept. 2013]).

Moreover, the newly asserted claims against defendants New York City Health and Hospitals Corporation and Evelyn Irizarry, M.D., are precluded because they were not set forth in the notice of claim, which cannot be amended at this late date (see Kisielewska v. City of New York, 211 A.D.3d 637, 637–638, 179 N.Y.S.3d 563 [1st Dept. 2022]).  Although these defendants did not raise this argument before the motion court, we may consider it because “it presents an issue of law that appears on the face of the record, and could not have been avoided had it been raised at the proper juncture” (I.T.K. v. Nassau Boces Educ. Found., Inc., 177 A.D.3d 962, 963, 113 N.Y.S.3d 726 [2d Dept. 2019] [internal quotation marks omitted]).

The motion court providently denied plaintiff's motion to amend the complaint for the same reasons.  Furthermore, plaintiff's proposed amendment to the complaint to add a claim for lack of informed consent against defendants St. Luke's–Roosevelt Hospital, Madison Surgical Associates, P.C., and Mitchell A. Bernstein, M.D. was properly denied as time-barred, and therefore palpably lacking in merit (see Pecora, 204 A.D.3d at 612, 168 N.Y.S.3d 26).  The proposed claim of lack of informed consent does not relate back to the filing of the original claim for medical malpractice (see Torchia v. Garvey, 118 A.D.3d 426, 427, 987 N.Y.S.2d 62 [1st Dept. 2014]).

The motion court providently denied plaintiff's motion to renew her motion to amend the bills of particulars.  Plaintiff offered neither new facts that were unavailable to her at the time of her motion to amend the bills of particulars, nor a reasonable justification for failing to present those facts in connection with the prior motion (see Matter of Duval v. Centerlight Health Sys., Inc., 216 A.D.3d 529, 530, 190 N.Y.S.3d 11 [1st Dept. 2023]).