GARY PEARCE, Appellant, v. BOOTH MEMORIAL HOSPITAL et al., Respondents, 152 A.D.2d 553

Summary

The action was premised on generally stated acts of malpractice that allegedly occurred in 1979 but the patient did not attempt to serve what he labeled a "supplemental bill" that included a special damage claim for custodial, supervisory, and housekeeping care until 1987. When defendants rejected the "supplemental bill", the patient unsuccessfully sought leave to amend his bills of particulars so as to include that special damage claim. The court dismissed the first order as superseded and affirmed the subsequent order. The court held that: (1) the patient had no right to serve the bill of particulars pursuant to N.Y. C.P.L.R. 3043(b) because the plaintiff was not merely updating allegations of special damages previously asserted but was rather adding a wholly new category of special damages; (2) under the circumstances leave to serve the bill was necessary; and (3) considering the timing of the motion, the age of the case, and the lack of an acceptable excuse for the delay in raising...