Mantilla v Lutheran Med. Ctr.

Mantilla v Lutheran Med. Ctr. 2011 NY Slip Op 09021 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Saxe, J.P., Sweeny, Acosta, DeGrasse, Abdus-Salaam, JJ.
6351N 104414/07

[*1]Milagros Mantilla, et al., Plaintiffs-Appellants,

v

Lutheran Medical Center, et al., Defendants-Respondents, LMC Physician Services, P.C., et al., Defendants.




The Adam Law Office, P.C., New York (Richard Adam of
counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York
(Michele R. Rita of counsel), for Lutheran Medical Center and
Sampath Kumar, M.D., respondents.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York
(Steven C. Mandell of counsel), for Thomas Woloszyn, M.D.,
respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 19, 2010, which denied plaintiffs' motions to amend their complaint and bill of particulars, unanimously affirmed, without costs.

Plaintiffs did not meet their burden, as movants, to show the merit of their proposed new medical malpractice theory, i.e., that a mesh patch surgically applied to plaintiff's abdominal wall during reconstructive surgery was known in the medical industry to be defective, that plaintiff's mesh patch was defective, and/or that plaintiff's mesh patch caused her harm (Shulte Roth & Zabel, LLP v Kassover, 28 AD3d 404 [2006]). Further, plaintiffs have not reasonably explained their delay in asserting their new defective-patch theory, which was brought by motion [*2]to amend dated April 9, 2010, when their moving papers indicate that they had reason to believe the mesh was defective at the time of plaintiff's corrective surgery, performed in January 2005 (see generally Cherebin, 43 AD3d 364).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK