Opinion
March 8, 1971
In a medical malpractice action to recover damages for personal injuries, defendant Pisillo appeals from an order of the Supreme Court, Queens County, dated November 13, 1970, which granted plaintiff's motion for leave to amend her bill of particulars. Order reversed, with $10 costs and disbursements, and motion denied. Our determination on the prior appeal ( Woods v. Pisillo, 35 A.D.2d 597) specifically precluded plaintiff from setting forth a new theory of liability not asserted in the original pleadings. Under the circumstances, therefore, it was error to allow plaintiff to amend her bill of particulars so as to expand the scope of the complaint by adding a new theory of liability on the retrial. Rabin, P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.