PENA v. KOKKADA SATHYANAYANA (2025)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about January 23, 2024, which granted defendants’ motion to dismiss the complaint and denied plaintiff's cross-motion to amend her notice of claim nunc pro tunc, unanimously affirmed, without costs.

Plaintiff seeks damages for medical malpractice and failure to obtain informed consent during defendants’ treatment of an injury to her left knee.  Plaintiff's original notice of claim alleged that improper orthopedic care caused her knee injury to progress and worsen so that she ultimately sustained an ACL rupture and meniscus tear, requiring her to undergo surgery on October 29, 2020.  However, after the General Municipal Law § 50–h hearing, plaintiff advanced a different theory of liability, alleging that she sustained nerve damage from the October 2020 surgery itself, as well as from the general anesthesia administered during the surgery, a postsurgical femoral nerve block procedure, and a lack of informed consent.  Despite this new theory of liability, however, the notice of claim did not contain any allegations regarding defendants’ treatment after the October 2020 surgery or lack of informed consent, nor during the ensuing three years of litigation did plaintiff seek to amend her notice of claim.  The omission of those allegations from the notice of claim warrants dismissal of the complaint, as the notice of claim does not sufficiently notify defendants of the relevant claims (see e.g. Scott v. City of New York, 40 A.D.3d 408, 410, 836 N.Y.S.2d 140 [1st Dept. 2007]).

Supreme Court providently exercised its discretion in denying plaintiff's cross-motion to amend the notice of claim in accordance with General Municipal Law § 50–e(6).  The statute “merely authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” (Scott, 40 A.D.3d at 410, 836 N.Y.S.2d 140).  Plaintiff's proposed amended notice of claim, however, includes a new theory of liability and a new injury — namely, that the improper postsurgical femoral nerve block procedure caused nerve damage.  This theory is different from what plaintiff originally alleged.  Similarly, as already noted, the original notice of claim is silent on the cause of action for lack of informed consent, and that claim as alleged in the complaint and bill of particulars constitutes a new cause of action.  Because the proposed changes substantially alter the theory of liability, plaintiff cannot rely on her § 50–h testimony to rectify the deficiencies in her notice (see Perez v. City of New York, 193 A.D.3d 432, 433, 144 N.Y.S.3d 43 [1st Dept. 2021];  Castillo v. Kings County Hosp. Ctr., 149 A.D.3d 896, 897, 52 N.Y.S.3d 451 [2nd Dept. 2017]).

We have considered plaintiff's remaining contentions and find them unavailing.