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Einheber v. Bodenheimer

Supreme Court, New York County

January 18, 2006

JACK EINHEBER, Plaintiff,
v.
HENRY BODENHEIMER, M.D., CHARLES MILLER, M.D., PATRICIA SHEINER, M.D., LEONA KIMSCHLUGER, M.D., SUKRU EMRE, M.D., THOMAS FISHBEIN, M.D., BEN HAIM, M.D., DR. KELLY, M.D., CECILIA DAVID, R.N., LINDSAY ARNOTT, R.N., UNKNOWN NAME PHYSICAL THERAPIST, DOES 1-100, ALEXANDER KIRSCHENBAUM, M.D. DOES 1-100, EUGENE FINE, M.D., SHELDON GLABMAN, M.D., ANTHONY SQUIRE, M.D., DR. SUTTON, M.D., FRANKLIN KLION, M.D., UNKNOWN NAME UROLOGY RESIDENT PHYSIC. MT. SINAI SURGICAL ASSOCIATES, MT. SINAI UROLOGICAL ASSOCIATES, MT. SESIAI SCHOOL OF MEDICINE RENAL DISEASE AND NEPHROLOGY ASSOCIATES, MT. SINAI SCHOOL OF MEDICINE CARDIOLOGY ASSOCIATES, MT. SINAI SCHOOL OF MEDICINE LIVER DISEASES AND HEPATOLOGY, MT. SINAI MEDICAL CENTER, and DOES 1-100, Defendants Index No. 114682/01

Unpublished Opinion

Motion Date: 10/25/05

EILEEN BRANSTEN, J.

Pursuant to CPLR 3025(b), plaintiff Jack Einheber ("Mr. Einheber") moves for permission to amend his bill of particulars. Defendants Henry Bodenheimer, M.D., Charles Miller, M.D., Patricia Sheiner, M.D., Leona Kim-Schluger, M.D., Eugene Fine, M.D., Sukru Emre, M.D., Thomas Fishbein, M.D. ("Dr. Fishbein"), Cecilia David, R.N., Lindsay Arnott, R.N., Sheldon Glabman, M.D., Mount Sinai Urology Associates, Mount Sinai School of Medicine Renal Diseases and Nephrology Associates, Mount Sinai School of Medicine Cardiology Associates, Mount Sinai School of Medicine Liver Diseases and Hepatology Associates, Mount Sinai Surgical Associates and The Mount Sinai Hospital ("Mount Sinai") (collectively "Defendants") oppose the motion and cross-move to strike the Note of Issue.

Background

On May 9, 1996, Mr. Einheber - then forty-seven years-old - presented to Mt. Sinai suffering from end-stage liver disease. On February 1, 1999, Dr. Fishbein performed a liver transplant on Mr. Einheber. His body began rejecting the liver on or about February 17, 1999.

In this medical malpractice action commenced in 2001, Mr. Einheber claims that Defendants negligently failed to: treat his osteopenia, osteoporosis and thyroid condition; adequately staff the transplant operation with two major surgeons; properly monitor the wound after surgery; and timely remove his stent.

On June 3, 2004, plaintiff filed the Note of Issue, averring that discovery was complete and that he was prepared to proceed to trial. Thus, on July 20, 2004, the parties participated in a pre-trial conference with the Court and agreed to a November 29, 2004 trial date. Affirmation in Opposition ("Opp."), Ex. A, at 1. After several adjournments, the parties were scheduled to go to trial on November 14, 2005.

More than one year after the first pre-trial conference, on October 17, 2005, Mr. Einheber made this motion for permission to amend his bill of particulars to allege new claims. In particular, Mr. Einheber now seeks to allege that Defendants negligently placed the transplanted liver in an unorthodox position, causing an abscess infection. Affirmation in Support of Motion ("Aff"), at ¶ 12. He claims that because of Defendants' negligence in placing the liver, he has developed hepatic artery thrombosis (HAT), a recurring form of sepsis that required him to endure over 70 days of hospitalization. Affirmation of Mr. Einheber ("Einheber Aff"), at ¶¶ 3-4. Mr. Einheber also argues that he should be permitted to amend his bill of particulars at this late stage in the litigation because he discovered only recently that he was suffering from HAT and that it was the result of Defendants' negligence. Aff, at ¶ 2. He further requests an extension of the trial date, alleging that he needs to undergo surgery in November to correct the placement of the transplanted liver. Einheber Aff., at ¶ 8.

Defendants oppose this motion, asserting that they will be prejudiced by the amendment because it is the eve of trial and they have not had an opportunity to depose the treating physicians or examine the medical records regarding the new claims. Opp., at¶9. Furthermore, Defendants allege that plaintiffs motion should be denied because he failed to submit an affidavit of merit from a physician. Opp., at ¶ 8. Finally, Defendants cross-move to strike the note of issue in the event that plaintiffs motion is granted. Opp., at ¶2,

Analysis

Amend Bill of Particulars

Leave to amend the bill of particulars is ordinarily freely given unless it would unduly prejudice the non-moving party. CPLR 3025(b); Kassis v. Teachers Ins. and Annuity Assoc, 258 A.D.2d 271, 272 (1st Dept. 1999). Mere lateness does not altogether bar amendment; rather, for a motion to amend to be denied, the amendment must cause significant prejudice to the non-movant. Heller v. Louis Provenzano, Inc., 303 A.D.2d 20 (1st Dept. 2003). Nonetheless, "when there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay." Oil Heat Inst, of Long Island Ins. Trust v. RMTS Assoc., LLC, 4 A.D.3d 290, 293 (1st Dept. 2004). If the amendment is sought on the eve of trial, "judicial discretion in allowing such amendment should be discreet, circumspect, prudent and cautious." Kassis v. Teachers Ins. and Annuity Assoc, 258 A.D.2d, at 272.

Leave to amend the bill of particulars is denied because it is inordinately late, plaintiff has not presented any reasonable excuse for the delay in seeking an amendment, and ...


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