Anthony Alcala, an infant by his mother, Yasmin Torres, et al., Plaintiffs-Appellants, v. Soundview Health Center, Defendant-Respondent. (2010)

Supreme Court, Appellate Division, First Department, New York.

Anthony Alcala, an infant by his mother, Yasmin Torres, et al., Plaintiffs-Appellants, v. Soundview Health Center, Defendant-Respondent.

3500N

Decided: October 28, 2010

Tom, J.P., Friedman, Catterson, Renwick, Manzanet-Daniels, JJ.

Grace & Grace, Yorktown Heights (William J. Grace of counsel), for appellants. Schiavetti, Corgan, DiEdwards Weinberg & Nicholson, LLP, New York (Thomas K. Wittig of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 14, 2009, which, to the extent appealed from, denied plaintiffs' motion for leave to amend their bill of particulars, unanimously affirmed, without costs.

Denial of the motion to amend, made 15 years after the alleged malpractice, 12 years after the initial bill of particulars, and more than 4 years after its first amendment, was a proper exercise of the court's discretion. Not only did plaintiffs fail to offer a reasonable excuse for this inordinate delay, but the proposed amendment had no merit (see Katechis v Our Lady of Mercy Med. Ctr., 36 AD3d 514, 516 [2007] ), propounding material changes that prejudicially introduced a new theory of liability (Vega v. Lenox Hill Hosp., 235 A.D.2d 302 [1997] ) that defendant had failed to diagnose an incompetent cervix, inconsistent with the previously alleged theory of failure to diagnose a bacterial infection.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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