Mackauer v. Parikh

Dillon, J.P.,

dissents and votes to reverse the order insofar as appealed from, on the law, and grant that branch of the de*879fendants’ motion which was for summary judgment dismissing the complaint, with the following memorandum, in which Roman, J., concurs: In my view, the order appealed from should be reversed and that branch of the defendants’ motion which was for summary judgment dismissing the complaint should be granted.

On April 13, 2009, the plaintiff underwent a colonoscopy during which his appendix allegedly was perforated. In June 2011, the plaintiff commenced this action against Dr. Divyang Parikh, who performed the procedure, and Parikh’s employer, Digestive Liver Disease Center. The complaint contained general allegations that the defendants were negligent and deviated from accepted standards of care in treating the plaintiff. Paragraph 2 of the plaintiff’s original bill of particulars, dated January 3, 2012, specified that the defendants’ departures from the accepted standards of care were the perforation of the appendix during the colonoscopy and the failure to advise the plaintiff of such risks. In the plaintiff’s second bill of particulars, dated April 29, 2014, and labeled as “supplemental,” the plaintiff reiterated that the theory of liability was the perforation of the appendix during the colonos-copy, along with the defendants’ independent failure to diagnose the surgically caused perforation during a follow-up office visit on April 21, 2009. Questions posed to Parikh during his deposition focused in significant measure upon the colon and the appendix, and the proximity and relationship between the two, and were specifically directed at whether and how a physician performing a colonoscopy would depart from accepted practice by perforating the appendix during the procedure.

In June 2014, the defendants moved, inter alia, for summary judgment dismissing the complaint. In support, they submitted, inter alia, an affirmation from their expert, Dr. James Grandell, who, based upon hospital, medical, and other documentation, opined that the plaintiff had developed appendicitis unrelated to the colonoscopy procedure.

In opposition, the plaintiff proffered the expert affirmation of Dr. David Zimmon, who acknowledged, contrary to the plaintiff’s previously alleged theory of liability, that Parikh was not negligent in performing the colonoscopy and that the plaintiff’s appendix was not perforated during the colonoscopy, as he did not develop severe lower abdominal pain until four days after the procedure. Rather, the plaintiff alleged for the first time, through Zimmon’s affirmation, that the defendants departed from the accepted standard of care by failing to make a diagnosis of appendicitis during the plaintiff’s postsurgical follow-up office visit on April 21, 2009.

*880In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

While we agree with our colleagues in the majority that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint, we disagree with their conclusion that the plaintiff raised a triable issue of fact. The well-recognized purpose of a bill of particulars is to amplify the pleadings, limit proof, and prevent surprise at trial (see Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487, 489 [2011]; Harris v Ariel Transp. Corp., 37 AD3d 308, 309 [2007]; Moran v Hurst, 32 AD3d 909, 912 [2006]; Castellano v Norwegian Christian Home & Health Ctr,, Inc., 24 AD3d 490, 491 [2005]; Batson v La Guardia Hosp., 194 AD2d 705, 706 [1993]). Responses must clearly detail the specific acts of negligence attributed to the defendants (see Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d at 489; Miccarelli v Fleiss, 219 AD2d 469, 470 [1995]; Batson v La Guardia Hosp., 194 AD2d at 706). Theories of liability not set forth in the complaint or in the bill of particulars are not part of the case, and an attempt to assert them in an expert affirmation in opposition to summary judgment is impermissible (see Michel v Long Is. Jewish Med. Ctr., 125 AD3d 945, 946 [2015]).

Here, the complaint contained only general allegations of negligence and medical malpractice. Thereafter, the original and “supplemental” bills of particulars specifically alleged that the plaintiff’s appendix was perforated during the colonoscopy. The plaintiff’s “supplemental” bill of particulars referred to a perforation 8 times and to the colonoscopy 12 times. Neither bill ever made any mention of appendicitis or of the defendants’ failure to diagnose appendicitis. Although both the original and “supplemental” bills of particulars contained other broad, generalized language, none of it can be reasonably construed as having placed the defendants on notice that failing to diagnose appendicitis one week after the colonoscopy was, in any way, related to the plaintiff’s theory of liability that the appendix was perforated during the colonoscopy or that it was a free-standing theory of liability. Thus, as to a failure to diagnose appendicitis, both the original and “supplemental” bills of particulars placed before the Supreme Court failed to fulfill the purpose of amplifying pleadings, limiting proof, and preventing surprise at trial (see Sealy v Uy, 132 AD3d 839, 840 [2015]; Batson v La Guardia Hosp., 194 AD2d at 706; Gannotta v Long Is. Coll. Hosp., 92 AD2d 930 [1983]). For that reason, I disagree with my colleagues in the majority *881that the plaintiff’s “supplemental” bill of particulars placed before the court a failure to diagnose appendicitis claim because, as to that significant discrete issue, the document is instead a mere “supplemental bill of generalizations,” which is inadequate.

The plaintiffs new theory of liability regarding appendicitis was alleged for the first time in late September 2014, three years after the commencement of the action, five months after the filing of the note of issue, and in opposition to the defendants’ motion, inter alia, for summary judgment. In light of the plaintiff’s protracted delay in presenting the new theory of liability, it should not have been considered by the Supreme Court (see Horn v Hires, 84 AD3d 1025 [2011]; Langan v St. Vincent’s Hosp. of N.Y., 64 AD3d 632, 633 [2009]; Yousefi v Rudeth Realty, LLC, 61 AD3d 677, 678 [2009]; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 736 [2008]; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799-800 [2007]; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]).

For the foregoing reasons, I vote to reverse the order insofar as appealed from.