Haussmann v. Wolf
| Decision Date | 19 November 1992 |
| Parties | Anne HAUSSMANN and William Haussmann, Plaintiffs-Respondents, v. Dr. Kenneth WOLF, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, ROSS and ASCH, JJ.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered December 16, 1991, granting plaintiffs' motion to renew and, upon renewal, granting plaintiffs' motion to amend the bill of particulars, unanimously reversed, on the law and on the facts, without costs or disbursements, and the motion to renew denied.
Six years after the commencement of this medical malpractice action, plaintiffs moved to amend their bill of particulars to assert a claim for failure to prescribe proper medications. The original bill, served almost six years before, and amended bill, served over two and one-half years earlier, had limited plaintiffs' claim, inter alia, to a failure to diagnose and properly interpret diagnostic tests, failure to advise on and perform laser therapy and failure to obtain an informed consent. After discovery was completed, and four months after service of the amended bill, a Medical Mediation Panel was convened and considered the matter based on the liability claims set forth in the original bill of particulars, as amended. The Panel reached a unanimous finding of "no liability". Over one year later, on the eve of trial, plaintiffs moved to amend the bill of particulars to assert for the first time their new claim, alleging that the failure to include it originally was due to an inadvertent typographical omission. Their motion was supported by a doctor's affidavit. The IAS court denied the motion, finding, in addition to the obvious prejudice to defendant, that "the excuses proffered by plaintiffs for the lateness of this application strain[ed] the credulity of this Court". The court also found the affidavit of merit to be "conclusory and vague as to the exact nature of the omission complained of." Plaintiffs thereafter moved for renewal and/or reargument, submitting an affidavit by the same doctor and alleging that they did not move earlier to amend because they lacked a "good faith basis" to proceed on the new theory. The court granted renewal and, on renewal, granted the amendment. We reverse.
The IAS court saw this case correctly in deciding the original application. There is an obvious prejudice to defendant in allowing this amendment...
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