Navarette v. Alexiades

• Decision Date: 15 April 2008
• Docket Number: 2006-03586.,2006-06372.
• Citation: 855 N.Y.S.2d 260,50 A.D.3d 869,2008 NY Slip Op 03432
• Parties: JORGE NAVARETTE, Appellant, v. MICHAEL ALEXIADES et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 869

855 N.Y.S.2d 260

2008 NY Slip Op 03432

JORGE NAVARETTE, Appellant, v. MICHAEL ALEXIADES et al., Respondents, et al., Defendants.

2006-03586.

2006-06372.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 15, 2008.

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), entered February 21, 2006, as granted the motion of the defendant Michael Alexiades, and the separate motion of the defendants Barry Waldman, Gary S. Shapiro, and Hospital for Special Surgery to preclude his experts from testifying at the trial on the ground that he failed to timely provide expert witness disclosure pursuant to CPLR 3101 (d) to the extent of directing him to serve new expert responses from the same physicians limited to the allegations claimed in the original bill of particulars, and (2) from an order of the same court, also entered February 21, 2006, which denied his motion for leave to amend his bill of particulars.

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs payable to the defendants Michael Alexiades and Hospital for Special Surgery.

The expert witness disclosure required by CPLR 3101 (d) was submitted by the plaintiff on November 10, 2005, more than 8 years after the surgical procedure at issue was performed, more than 6 years after this action was commenced, more than 2 years after the plaintiff served his bills of particulars, and only 11 days before the trial of this action was scheduled to commence. The expert witness disclosure included new theories of liability that were not readily discernable from the allegations set forth in the bills of particulars. Thus, the Supreme Court correctly granted the motion of the defendant Michael Alexiades, and the separate motion of the defendants Barry Waldman, Gary S. Shapiro, and Hospital for Special Surgery to preclude the plaintiff's experts from testifying at trial to the extent of directing the plaintiff to serve new expert responses from the same physicians limited to the allegations claimed in the original bill of particulars (see Durant v Shuren, 33 AD3d 843, 844 [2006]; Lissak v Cerabona, 10 AD3d 308, 309-310 [2004]).

In addition, the Supreme Court properly denied the plaintiff's motion for leave to amend his bills of particulars. While leave to amend a bill of particulars is ordinarily freely given (see CPLR 3025 [b]; Cohen v Ho, 38 AD3d 705 [2007]), where a motion for leave to amend a bill of particulars alleging new theories of liability not raised in the complaint or the original bill is made on the eve of trial, leave of court is required, and judicial discretion should be exercised sparingly, and should be discreet, circumspect prudent, and cautious (see Cohen v Ho, 38 AD3d at 705-706; Lissak v Cerabona, 10 AD3d at 309-310; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846 [2003]; Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271 [1999]; Volpe v Good Samaritan Hosp., 213 AD2d 398, 398-399 [1995]). Moreover, where...