Martinez v Fields

Martinez v Fields 2010 NY Slip Op 05492 [74 AD3d 653] June 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Miriam Martinez, Appellant,
v
Abbie Fields, M.D., et al., Respondents.

—[*1] Nathan L. Dembin & Assoc. PC, New York (Kenneth J. Gorman of counsel), for appellant.

Furman Kornfeld & Brennan LLP, New York (Patrick J. Brennan of counsel), for respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November 21, 2008, which granted defendants' motion to strike plaintiff's amended bill of particulars, unanimously affirmed, without costs.

The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiff's cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiff's urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment (see CPLR 214-a; Porubic v Oberlander, 274 AD2d 316 [2000]), and plaintiff served her amended bill of particulars two days prior to filing the note of issue (see CPLR 3042 [b]), an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint (see Behren v Warren Gorham & Lamont, Inc., 24 AD3d 132 [2005]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.