Opinion
2650N.
Decided January 6, 2004.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 10, 2003, which, in a medical malpractice action, denied plaintiffs' motion to compel defendant hospital to accept a supplemental bill of particulars, or, in the alternative, for leave to serve an amended bill of particulars, unanimously affirmed, without costs.
Mark R. Bower, for Plaintiffs-Appellants.
Jeffrey P. Santora, for Defendant-Respondent.
Before: Mazzarelli, J.P., Andrias, Saxe, Williams, Friedman, JJ.
The primary relief sought was properly denied on the ground that plaintiffs' self-labeled "supplemental" bill of particulars amended, rather than supplemented, their prior bills of particulars alleging an injury to the heart by adding a new injury to the brain not previously claimed or even suggested ( see Danne v. Otis Elev. Corp., 276 A.D.2d 581). The alternative relief sought was properly denied on the ground that plaintiffs failed to show when the symptoms they associate with the brain injury first became manifest or otherwise reasonably explain why they waited until the eve of trial, more than seven years after the alleged malpractice and five years after institution of the action, to first allege the brain injury ( see id.; Markarian v. Hundert, 262 A.D.2d 369). We have considered plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.