CHAPMAN v. TOVAR (2025)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about December 5, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to amend the bill of particulars, unanimously affirmed, without costs.

Initially, we decline to dismiss the appeal for plaintiff's failure to compile a complete record on appeal because all the relevant documents filed in the action are available on eCourts (see Ninth Space LLC v. Goldman, 189 A.D.3d 686, 686, 134 N.Y.S.3d 718 [1st Dept. 2020];  Perez v. New York City Hous. Auth., 47 A.D.3d 505, 505, 850 N.Y.S.2d 75 [1st Dept. 2008]).

Supreme Court providently exercised its discretion in denying plaintiff's motion to amend her bill of particulars.  Contrary to plaintiff's contention, the proposed amended bill of particulars does not merely supplement her prior bills of particulars, but advances a new theory of liability, namely, that not only was her hysterectomy negligently performed, but it was not necessary in the first place (see Stovall v. Lenox Hill Hosp., 200 A.D.3d 570, 571, 155 N.Y.S.3d 333 [1st Dept. 2021]).  Defendants would be unduly prejudiced if plaintiff proceeded on this new theory after more than a decade since the action was commenced, after summary judgment motions have been decided, and on the eve of trial (see Perez v. New York City Health & Hosps. Corp., 226 A.D.3d 602, 603, 211 N.Y.S.3d 17 [1st Dept. 2024];  Vega v. Lenox Hill Hosp., 235 A.D.2d 302, 302, 652 N.Y.S.2d 293 [1st Dept. 1997]).

Although the court permitted plaintiff an extension of time after the note of issue had been filed to find a new expert because her original expert had passed away, this leeway was not meant to allow plaintiff to recast her case (see Lopez v. City of New York, 80 A.D.3d 432, 433, 914 N.Y.S.2d 128 [1st Dept. 2011]).  Plaintiff's contention that it was foreseeable that her new medical expert would have a differing opinion does not excuse the untimely amendment, as plaintiff had the medical records that 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]).  Given that the proposed amendment is prejudicial to defendants, Supreme Court providently declined plaintiff's alternative requested relief to amend pursuant to CPLR 3025(c) (see Gonfiantini v. Zino, 184 A.D.2d 368, 369, 584 N.Y.S.2d 847 [1st Dept. 1992]).

To the extent plaintiff's proposed amended bill of particulars suggests otherwise, her informed consent claim and direct claims against defendant St. Barnabas Hospital were dismissed on summary judgment and cannot be reasserted through repleading (see Buckley & Co. v. City of New York, 121 A.D.2d 933, 935, 505 N.Y.S.2d 140 [1st Dept. 1986], lv dismissed 69 N.Y.2d 742, 512 N.Y.S.2d 1030, 504 N.E.2d 699 [1987]).