McCormack v Winick
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McCormack v Winick 2016 NY Slip Op 30190(U) February 3, 2016 Supreme Court, Suffolk County Docket Number: 10-31231 Judge: Arthur G. Pitts Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. ___,_!=-0-..:..3-=-=12=3~1-_ _ CAL. No. 14-01034MM SI IORT FORM ORDER SUPREME COURT - STATE OF NEW YORK l.A.S. PART 43 - SUFFOLK COUNTY PRESENT: Hon. ARTIIUR G. PITTS Justice of the Supreme Court ---------------------------------------------------------------X WILLIAM MCCORMACK and JAMES BOPP, as Guardians of TIMOTHY MCCORMACK, an lncapaci lated Person, MOTION DATE 8-29-13 (#003) MOTION DATE 10-23-14 (#004) ADJ. DATE 1-8-15 Mot. Seq. # 004 - MD # 005 - XMD ROBERT F. DANZ!, ESQ. Attorney for Plaintiff 900 Merchants Concourse, Suite 314 Westbury, New York 11590 Plaintiffs, - against - JONATI !AN CHARLES WINICK, M.D., LONG ISLAND NEUROLOGY P.C. and SOUTIISIDE IIOSPITAL, Defendants. MCHENRY, HORAN & PILATSKY, PLLC Attorney for Defendants Winick, M.D. and Long Island Neurology 255 South Street Oyster Bay, New York 11771 SHAUB, AHMUTY, ClTRIN & SPRATT, LLP Attorney for Defendant Southside Hospital 1983 Marcus Avenue Lake Success, New York 11042 ---------------------------------------------------------------X Upon the following papers numbered I to 42 read on this motion for summary judgment and cross motion to amend pleadings ; Notice of Motion/ Order to Show Cause and supporting papers 1-.:.1.f._; Notice ofCross Motion and supporting papers 23 - 36 ; Answering Affidavits and supporting papers 37 - 38 ; Replying Affidavits and supporting papers 39 -42 ; Other _;(and after !1ett1 i11g eot1t1!'.iel in .~t1ppo1 t and oppo~ed to the 1110tion) it is, ORDERED that the motion by defendant Southside I Iospital seeking, inter al in, summary judgment dismissing the complaint is denied; and it is further ORDERED that the cross motion by plaintiffs for leave to amend their bill of particulars is denied, without prejudice to renew, upon proper papers within thirty (30) days of the entry date of thi s order. On March 19, 2008, Timothy McCormack presented to the Emergency Department of Southside Hospital with complaints of fever, weakness, falls, generalized malaise and decreased oral intake for three [* 2] McCormack v Winick Index No. I 0-3123 1 Page No. 2 days, and a di ffuse erythemalous rash for one day. Due to a history of seizures, he was taking Dilantin and Topamax, and had recently started taking Lamictal. Timothy McCormack's initial vitals included a hypotcnsive blood pressure, an elevated temperature and an oxygen saturation rate of94%. Based upon his presentation, Timothy McCormack was placed in respiratory isolation. The laboratory tests of blood samples taken in the Emergency Department revealed that Timothy McCormack's white blood cell count, glucose level, creatinine level, and blood urea nitrogen level were elevated, and that he had a low sodium level of 133. A spinal tap was performed, which revealed clear spinal fluid. In addition, a computerized tomography ("CT") scan demonstrated symmetric frontal lobe gliosis, indicating a remote parenchymal injury and a coincidental arachnoid cyst within the superior portion of the posterior fossa. The CT scan report indicated that there was no acute intracranial hemorrhage mass, mass effect or infraction. After undergoing various consultations, Timothy McCormack was diagnosed with Stevens-Johnson syndrome, secondary to Lamictal, the new seizure medication, as well as questionable sepsis, rhabdomyolysis/renal failure and seizure disorder. Following the diagnosis, he was admitted into the hospital and placed in the Intensive Care Unit, an intravenous ("IV") catheter was inserted to administer fluid and broad-spectrum antibiotics, and he was given deep vein thrombosis prophylaxis. On March 20, 2008, at approximately 6:00 p.m., Timothy McCormack was discovered out ofhis bed, on his hands and knees on the floor, in an agitated state with no apparent signs of trauma. As a result of his behavior, restraints were applied and a head CT scan was performed, which did not show any signs of gross interval changes since the CT study performed the previous day. On March 21 , 2008, Timothy McCormack was intubated as a result of developing acute hypoxic respiratory fail ure. He also was in liver, pulmonary and renal failure, and he had disseminated intravascular coagulation (''DIC"). He was given fresh frozen plasma, platelets, and vitamin K to help treat the DIC. During the days after the aforementioned occurrence, Timothy McCormack was extubated and reintubated, and he received numerous blood transfusions due to low hemoglobin; his prothrombin time and partial thromboplastin time remained elevated. I,ater that day, Dr. Goyal, a nephrologist, examined Timothy McCormack and issued orders stating that the patient was not to be administered heparin. However, a heparin-based saline solution was used to flush Timothy McCormack's IV lines and permacath catheter every 12 hours. Between March 25 and March 26, 2008, Timothy McCormack was weak and lethargic, but alert, and was extubated and re-intubated due to his low oxygen saturation rate. On March 27, 2008, Timothy McCormack was diagnosed with sepsis, the infecting bacteria was identified as Vancomycin-rcsistant enterococcus faecium ("VRE"), and he was given Xigris to treat the infection. On March 30, 2008, following an examination by a neurologist, who noted that Timothy McCormack's pupils were dilated, that he was wearing a facemask and that he followed simple instructions, he was once again extubated. On March 3 1, an early morning note authored by one ofthc nurses stated that Timothy McCormack was •·quite lethargic and extremities flaccid moves hands only." Later that day, Dr. Michael Sacca, a surgeon, placed a hemodialysis permacath and central line in Timothy McCormack' s chest for him to receive dialysis. Dr. Sacca noted in his interoperative report that no complications occurred during the procedure. J\. note in the hospital chart states that, at approximately 3 :20 p.m., Timothy McCormack was awake but lethargic, secondary to the pennacath placement surgery. At approximately 4:20 p.m., Timothy McCormack' s dialysis treatment began and about an hour into the treatment he became tachycardiac, but [* 3] McCormack v Winick fndex o. I0-31231 Page No. 3 his blood pressure remained stable. At approximately 6:20 p.m., it was noted that his heart rate decreased to the 60s, that he was not responding, that he was "decorticated to noxious stimuli." A CT scan revealed that Timothy McCormack had an acute right subdural hematoma and a smaller left subdural hcmatoma. The radiologist report also noted a "significant shift of midline structures to the left with effacement of the right lateral ventricle and the third ventricle [and] dilation of the left lateral ventricle, and the fourth ventricle was noted to possibly be slightly smaller than on prior examination." Ilowever, no changes to the arachoid cyst previously were observed, and linear lucency was observed in the right occipital bone, which may have been representative of a fracture. After receiving the results of the CT scan, Timothy McCormack was taken to the operating room for an evaluation of the large right subdural hematoma in the frontal and parietal area by Dr. William McCormick. On April I, 2008, a repeat CT scan was performed on Timothy McCormack's head, which demonstrated improved overall mass effect from the preoperative study. However, the scan also showed subdural blood/cerebrospinal fluid on the right side of the brain and a continued right to left shift. As a result, a repeat surgical exploration and decompression of the subdural hematoma immediately was performed by Dr. McCormick. On May 8, 2008, Timothy McCormack was transferred to the Traumatic Brain Unit, where he underwent physical occupational and speech therapy. On June 26, 2008, Timothy McCormack was discharged from the Traumatic Brain Unit and transferred to St. Johnland Nursing Home Inc. with limited speech, limited movement in his extremities, the abil ity to follow simple commands in his left upper extremity, and a rash. Timothy McCormack's final diagnosis at the time of his discharge was "acute renal failure, acute tubular necrosis, rhabdomyolysis, hypersensitive drug reaction/probable StevensJohnson syndrome, subdural hematoma, septic shock, hypercoagulopathy, thromboeytopenia, hypopotassemia, seizure disorder and anemia." On January 29, 2009, William McCormack and James Bopp were appointed guardians ofthe person and property of Timothy McCormack, an incapacitated individual. Thereafter, plaintiffs William McCormack and James Bopp, as guardians of Timothy McCormack, an incapacitated individual, commenced this action against defendants Jonathan Winick, M.D., Long Island Neurology, P.C., and Southside Hospital, to recover damages for injuries Timothy McCormack allegedly sustained as a result of medical malpractice, and negligent hiring and supervision. The gravamen of the complaint against Southside Hospital al leges that Timothy McCormack was caused to sustain a fracture to his skull, resu Iting in the development of a subdural hematoma when he fell from his hospital bed, and that the hospital was negligent in failing to take precautions to prevent such an occurrence. Plaintiffs further allege that, in contravention of the order given by Dr. Goyal, heparin was administered to Timothy McCormick during his admission to Southside I Iospital in March 2008, and that the hospital failed to properly perform and interpret the radiographic studies taken of Timothy McCormack's brain. Southside I lospital now moves for summary judgment on the basis that its staff did not deviate from good and acceptable standards of medical care during Timothy McCormack's admission into its facility from March to June 2008. In support of the motion, Southside Hospital submi ts copies of the pleadings, the affidavit of its expert, Dr. Joseph Jeret, the parties' deposition transcripts, the deposition transcripts of' nonparty witnesses Jeannellc Blaha, Michelle Peck, Dr. Sevine Kadayifci, and Dr. Michael Sacca. and Timothy McCormick's uncertified medical records. [* 4] McCormack v Winick Index No. 10-31231 Page No. 4 Plaintiffs oppose the motion on the ground that Southside IJospital failed to meet its prirna facie burden that its staff did not deviate from acceptable standards of medical care when it rendered treatment to Timothy McCormack during his admission to its facili ty. In opposition to the motion, plaintiffs submit copies of the pleadings, the affidavits ofDr. John Robert Kirkwood and Dr. Kenneth Berger, the deposition transcript of William McCormick, and uncertified copies of Timothy McCormack's medical records. It is fundamental that the primary duty of a hospital 's nursing staff is to fo llow the physician's orders, and that a hospital, generally, will be protected from tort liability if its staff follows the orders" (Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 265, 292 NYS2d 440 P968J; see Sledziewski v Cioffi, 137 !\D2d 186, 538 NYS2d 913 l"Jd Dept 1988J). "A hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee and may not be held concurrently Iiable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the same" (Toth v Blosllinsky, 39 AD3d 848, 850, 835 NYS2d 301 [2d Dept 20071; see Sela v Katz, 78 ADJd 681, 9 11 NYS2d I l 2 f2d Dept 20 IOJ; Cerny v Williams, 32 ADJd 881, 882 NYS2d 548 [2d Dept 20061). "A hospital may also be held liable on a negligent hiring and/or retention theory to the extent that its employee committed an independent act of negligence outside the scope of employment, where the hospital was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Doe v Gutherie Clinic, Ltd. , 22 NY3d 480, 485, 982 NYS2d 43 1 [20 14]; see Sieden v Sonstein, 127 AD3d 1158, 7 NYS3d 565 l2d Dept 2015J). However, "an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the of the patient's choosing" (Schultz v Shreedhar, 66 AD3d 666, 666, 886 NYS2d 484 [2d Dept 2009) quoting Salvatore v Winthrop Univ. Med. Ctr. 36 J\D3d 887, 888, 829 NYS2d 183 f2d Dept 20071; see Sampson v Contillo, 55 AD3d 588, 865 NYS2d 634 [2d Dept 2008]). Moreover, "not every negligent act of a nurse lis] considered medical malpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice" (Bleiler v Bodnar, 65 NY2d 65, 72, 489NYS2d 885l1985]; see Spiegel v Goldfarb, 66J\D3d 873, 889 NYS2d 45 l2d Dept 2009J). This conclusion is no different with respect to the emergency room nurse, functioning in that role as an integral part of the process of rendering treatment to a patient (Bleiler v Bodnar, supra at 72, 489 NYS2d 885). On a motion for summary judgment in a medical malpractice action, a medical professional has the initial burden of demonstrating that the medical treatment rendered to a plaintiff was within the acceptable standards of medical care, or that any departure or deviation was not a proximate cause of the alleged injury or damage sustained by the plaintiff (see Maki v Bassett Healthcare, 85 AD3d 1366, 924 NYS2d 688 [3d Dept 201 IJ ;Suits v Wyckof/Hgts. Med. Ctr. , 84 AD3d 487, 922 NYS2d 388 ll st Dept201 ll). Where the defendant has met his or her burden, the plaintiff, in opposition, must demonstrate the existence of a triable issue of fact through the submission or evidcntiary acts or materials, but only as to the clements on which the defendant met the prima facie burden (see Schmitt v Me</ford Ctr. , l 21 /\D3d l 088, 996 NYS2d 75 r2d Dept 20141; Gillespie v New York Hosp. Queens, 96 J\D3d 901, 947 NYS2d 148 l2d Dept 2012]: Savage v Quinn , 91 J\D3d 748, 937 NYS2d 265 f2d Dept 2012]; Stukas v Streiter, 83 AD3d 18. 918 NYS2d 176 12d Dept 2011]). General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending lo establish the essential clements of medical malpractice, are insufficient to [* 5] McCormack v Winick Index No. 10-3 1231 Page No. 5 defeat a medical provider's summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986J; Garhowski v Hudson Val. llosp. Ctr., 85 AD3d 724, 924 NYS2d 1 Dept 20 11 ]). 2d Further, an expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable (see e.g. Brady v Westchester County Healthcare Corp., 78 AD3d I 097, 912 NYS2d I04 l2d Dept 20 101; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 871>JYS2d617 l2d Dept 20081; Mustello v Berg, 44 /\D3d 1018, 845 NYS2d 86 [2d Dept 20071). Upon review of the exhibits and the expert affirmation of Dr. Jeret, the Court finds that Southside I lospital has failed to establish its prima facie entitlement to judgment as matter of law that its staff did not depart from good and accepted standards of medical care in its treatment of Timothy McCormack during his admission to its facility, or that such departure was not a proximate cause of Timothy McCormack's injuries (see Barie v Bethpage Physical Therapy Assoc., 122 AD3d 784, 995 NYS2d 514 l2d Dept 20 14); Lormel v Macura, 113 /\D3d 734, 979 NYS2d 345 r2d Dept 2014]; Yaegel v Ciuffo, 95 AD3d 1110, 944 NYS2d 601 [2d Dept 20121; cf Bhim v Dourmashkill, 123 /\D3d 862, 999 NYS2d 471 (2d Dept 20 131). "/\ hospital is responsible to a patient who sought medical care at the hospital" (Hill v St. Clare's Hosp., 67 NY2d 72, 80-81; 499 NYS2d 904 (1986]), "and must follow accepted and approved standards of practices in the care and treatment of its patients" (0 'Connell v Albany Med. Ctr. Hosp., 101 AD2d 63 7, 638 475 NYS2d 543 [3d Dept 1984)). A defendant moving for summary judgment in an action alleging medical malpractice must specifically address the allegations of medical malpractice contained in the plaintifI's bill of particulars (Willi v Flus/ting Hosp. Med. Ctr. , 78 AD3d I 043, 144-45, 912 NYS2d 77 l2d Dept 2010); Terranova v Finklea, 45 AD3d 572, 572, 845 NYS2d 389 [2d Dept 20071). Here, Dr. Jeret's affirmation, as well as the other exhibits submitted in support of the motion, failed to address all of the allegations asserted against Southside I lospital in plaintiffs' bills ofparticulars, ignored important facts, and was based on certain errors (see Macias v Ferz/i, 131AD3d673, 15 NYS3d466 r2d Dept 2015]; LaVecc/1ia v Bilello, 76 /\D3d 548, 906 NYS2d 326 (2d Dept 20101; Kuri v Bhattacharya, 44 A.03d 718, 842 NYS2d 734 l2d Dept 20071; Ward v Engel, 33 AD3d 790, 822 NYS2d 608 (2d Dept 2006]). Plaintiffs' allege, among other things in their bills of particulars, that Southside Hospital was negligent "in their care and treatment of Timothy McCormack; in failing to keep the bed rails up; in failing to pad the bed rails and take other seizure precautions/prophylaxis; in failing to properly work Timothy McCormack up after fall from bed, including but not limited to radiographic studies of the head and other clinical treatments; in failing to properly monitor Timothy McCormack post-extubation to avoid oxygen deprivation, aspiration, disorientation, and thrashing about; and in failing to recognize changes in Timothy McCorrnack's physical condition prior to and after the placement of the perma cath." However, Southside Hospital's medical expert, Dr. Jeret, only addressed whether Timothy McCormack sustained a subdurmal hematoma during his hospital admission, but not any of the other allegations of negligence against the hospital or any of the other injuries al leged to have been sustained by Timothy McCormack. /\dditionally, the opinions expressed by Dr. Jeret in hi s affirmation are speculative and concluso1y regarding the allegations that Southside Hospital departed from acceptable standards of medical care. Conclusory statements of a defendant" s expert, such as the defendant physician or staff did not depart from good and accepted practice are insufficient to meet a defendant's prima facie burden (see Diaz v NY Dow11town Hosp. , 99 NY2d 542, 754 NYS2d 195 r2002 I). "Furthcnnore, bare allegations which do not re fute the specific factual allegations of medical malpractice in the bill of particul ars are insufficient to establish entitlement to judgment as a matter of law" (Grant v Hudsot1 Val. Hosp. Ctr., 55 /\D3d 874, 874, [* 6] McCormack v Winick Index No. 10-31231 Page No. 6 866 NYS2cl 726 [2d Dept 20081; see Terranova v Finklea, 45 AD3d 572, 845 NYS2cl 38912d Dept 2007]). Dr. Jcret's opinion is premised upon the fact that, since there is no record of Timothy McCormack having suffered any head trauma at Southside Hospital, such did not occur and, therefore, no causal relationship can be established between the resulting injuries that Timothy McCormack sustained and any malpractice by Southside I Iospital. I Iowcver, Dr. Jcrct's opinion failed to adequately explain how Timothy McCormack sustained a subdural hematoma while admitted at Southside Hospital. Rather, Dr. Jeret states in his report that the ''only reasonable explanation for the subdural hematoma was, because the coagulopathic patient was ripe for a spontaneous bleed." Yet, Dr. Jcrct arrives at this conclusion without indicating that he reviewed any of the films of the brain CT scans that Timothy McCormack underwent while he was in Southside Hospital or the location of said subdermal hematoma in relation to a skull fracture that occurred in 1992. "Where an expert's ultimate assertions arc speculative or unsupported by any cvidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment" (Romano v Stanley, 90 NY2d 444, 451-452, 661 NYS2d 589 [1997]; see Amatul/i v Delhi Con.sir. Corp. , 77 NY2d 525, 569 NYS2d 337 P991]). Dr. Jeret also states that the order of"no heparin" by the nephrologists treating Timothy McCormack only applied to nephrologists as part of the dialysis order, and that the "trivial diluted amount of heparin" used to flush Timothy McCormack's IV line had no causal relationship with the subdural hcmatoma suffered by Timothy McCormack. However, Dr. Jeret fails to explain these bare conclusory assertions regarding the use and effect of heparin, even in these "trivial diluted" amounts, in a patient known to be coagulopathic, especially since the orders were written to prevent any direct infusion of heparin into Timothy McCormack. In fact, Dr. Sevine Kadayifci, a hospitalist at Southside I lospital who treated Timothy McCormack, testified at an examination before trial that, since Timothy McCormack had a low platelet count and coagulation abnormalities, the nephrologist wrote orders stating that Timothy McCormack was not to have any heparin to prevent any risk of bleeding occurring. He also testi tied that he be! ieves it may have been a hemodialysis order, but he is not sure. Moreover, Dr. .Jcret perfunctorily states in his report that there was no treatment for Timothy McCormack's lethargy or flaccid extremities before or after the placement of the pcrmacath, and that there was no causal connection with the alleged injuries he sustained, which is in direct contradiction to the deposition testimony given by Michelle Peck, a registered nurse who cared for Timothy McCormack while he was in the ICU at Southside I Iospital. Michelle Peck testified at an examination before trial that when a patient is lethargic and has flaccid extremities there may be a neurological problem or symptom that is occurring. Indeed, Dr. Kadayi fci and Dr. Sacca each testified that flaccid extremities and lethargy also can be a change in a patient's clinical condition or finding that may be representative of a neurological compromise, which may require further study based upon the patient. Thus, Dr. Jcret's affirmation failed to eliminate all triable issues of fact as to whether Southside Ilospital departed from the acceptable standard of medical care when it treated Timothy McCormack during his admission at its facility, and whether that departure was a proximate cause of Timothy McCormack's injuries (see Faicco v Golub, 91 AD3d 817, 938 YS2d 105 [2d Dept 20121; Callahan v Gueneratne, 78 AD3d 753. 910 NYS2d 551 [2d Dept 20 10)). In light of this determination, it is unnecessary to review the sufficiency or plaintiffs' oppositi on papers as they relate to Southside Hospital (see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 r1985 J; Castro v New York City Healtlt & Hosps. Corp. , 74 AD3d I 005, 930 NYS2d 152 12<.I [* 7] McCormack v Winick Index No. 10-3 123 l Page No. 7 Dept 20 l 0 I; Vi11ci11i v l11Sel, I J\D3d 35 I, 766 NYS2d 569 l2d Dept 2003 I). Accordingly, Southside Hospital 's motion fo r summary judgment dismissing the complaint is denied. Plaintiffs cross-move, pursuant to CPLR 3025, for leave to serve an amended bill of particulars to state the negligent acts occurred from March I 9 through 3 I, 2008, and thereafter, in regards to their allegations against Southside Hospital. Jn support of the cross motion, plaintiffs suhmit copies of the plead ings and a copy of the original verified bill of particulars. Southside Ilospital opposes the cross motion, al leging that plaintiffs' entire theory of malpractice focused on a purported trauma that occurred during the transport of Timothy McCormack for a pcrmacath placement, and that to allow plaintiffs to amend their bill of particulars to conform to the proof at this late da te would be prejudicial to Southside Hospital. CPLR 3025 (b) states, in pertinent part, that a party may amend his or her pleading at any time by leave of court or by stipulation of all parties, and that leave shall be freely given upon such terms as may be just (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 471 NYS2d 55 [1983]; Green v Passenger Bus Corp. , 61AD3d 1377; 877 NYS2d 577 l4th Dept 2009J). Moreover, the decision whether to grant leave to amend a pleading is committed solely to the discretion of the court (see Murray v City of New York , 43 NY2d 400, 40 I NYS2d 773 [ 1977J; Anderson v Notting/tam Vil. Homeowner's Assn., Inc. , 37 AD3d 1195, 830 NYS2d 882 l4th Dept 2007]). Leave to amend a pleading will be granted so long as it does not prejudice the nonmoving party and where the amendment is not patently lacking merit (see McFar!a11dv Mic/tel, 2 AD3d 1297, 770NYS2d 544f4th Dept2003l; Letterman v Reddington , 278 /\D2d 868, 718 NYS2d 503 [20001). Also, it is a well-established rule that "the legal sufficiency or merits of a proposed amendment a pleading will not be examined on the motion to amend unless the insufficiency or lack of merit is clear and free from doubt" (see Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 5 I 2, 455 NYS2d 19 I 1982]; De Forte v Allstate Ins. Co., 66 AD2d 1028, 411 NYS2d 726 [ 1978J; see also Siegel, Practice Commentaries, McKinney' s Cons Laws ofNY, Book 78, CPLR 3205). Jn addition, a party opposing such an application must establish prejudice by showing that the party "has been hindered in the preparation of [its[ case or has been prevented from taking some measure in support of [_ position" its] (Loomis v Civett<t Corinno Cmutr. Corp. , 54 NY2d 18, 23, 444 NYS2d 571 (1981 J; see Whalen v Kawasaki Motors Corp., 92 NY2d 288, 680 NYS2d 435 [1998]; Val<fes v Marhrose Realty, 289 AD2d 28, 734 NYS2d 24 11 st Dept 2001 ]). However, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted from such delay (see Morris v Queens Long Is. Med. Group., P. C., supra; Colten v Ho , 38 AD3d 705, 833 NYS2d 542 [2d Dept 2007]; see also Kyong Hi Wo/111 vCou11tyofSuffolk. 237 AD2d 412, 654 NYS2d 82612d Dept 20031; Volpe v Good Samaritan Hosp. , 213 AD2d 398, 623 NYS2d 330 f2d Dept 1995]). Likewise, once discovery is complete and the case is certified as ready for trial, a party will not be permitted to amend his or her bill of particulars except u pon a showing of "special and extraordinary circumstances" (Schreiber-Cross v State of New York , 57 J\DJd 881. 884, 870 NYS2d 438 [2d Dept 2008J). or fn the instant matter, plaintiffs have failed to include a copy of their proposed amended bill of parti culars with their moving papers. Thus, plaintiffs have fai led to support their motion with any evidentiary proo f' or to show that their purposed amendment has merit (see Kilkenny v Law Off. ofCuslmer & Garvey, LLP, 76 /\D3d 5 12, 905 NYS2d 661 [2d Dept 20 I 01; Ferdinamlv Crecca & Blair, 5 AD3d 538, [* 8] McCormack v Winick Index No. 10-31231 Page No. 8 774 NYS2d 714 l 2d Dept 2004l, lv denied 3 NY3d 609, 786 NYS2d 812 [2004]; Farrell v K.J.D.E. Corp., 244 AD2d 905, 665 NYS2d 20 I [4th Dept 19971; cf Dever v De Vito, 84 AD3d 1539, 922 NYS2d 646 l3d Dept201 l];Manningv Thorne, 73 AD3d 1136, 900 NYS2d 900 [2d Dept 2010];Parametric Capital Mgt., LLC. v Lacher, 33 AD3d, 376, 822 NYS2d 60 [1st Dept 2006]). Accordingly, plaintiffs' motion for leave to amend their bill of particulars is denied, without prejudice to renew. Plaintiffs may resubmit their cross motion with a copy of the proposed amended bill of particulars attached to the moving papers within 30 days of the entry date of this order. In the alternative, plain.tiffs may make an application to the presiding justice for pcnnission to amend the pleadings to conform with the evidence at the time of trial. /' ··~ -~~---:---· ~ Dated: February 3, 2016 J.S.C. FINAL DISPOSITION X NON-FINAL DISPOSITION
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