Summary
In Castillo v. Kings County Hosp. Ctr, 149 A.D 3d 896 [2d Dept 2017], the Second Department denied the plaintiff's motion for leave to amend the notice of claim, as the proposed amendment "asserted a new injury and added a new theory of liability."
Summary of this case from The Estate of Dora Veytsman By Rimma Veytsman As Adm'x v. N.Y.C. Health & Hosps. Corp.Opinion
04-19-2017
Marlon CASTILLO, appellant, v. KINGS COUNTY HOSPITAL CENTER, et al., respondents.
The Ottley Law Firm, P.C., Brooklyn, NY (Roland G. Ottley of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Janet L. Zaleon of counsel), for respondents.
The Ottley Law Firm, P.C., Brooklyn, NY (Roland G. Ottley of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Janet L. Zaleon of counsel), for respondents.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Weston, J.), dated June 17, 2015, as denied those branches of his motion which were pursuant to General Municipal Law § 50–e(6) for leave to amend the notice of claim and pursuant to CPLR 3025(b) for leave to amend the complaint, in effect, to specify an amount of damages in the ad damnum clause.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On August 26, 2013, the plaintiff underwent a surgical procedure at the defendant New York City Health and Hospitals Corporation (hereinafter HHC) to remove a bony mass from his left hip. On October 17, 2013, the plaintiff served a notice of claim on HHC alleging that his urethra was injured due to the negligent insertion of a Foley catheter. On November 21, 2014, the plaintiff moved, inter alia, pursuant to General Municipal Law § 50–e(6) for leave to amend his notice of claim to allege that, during the operative procedure, the defendants caused injury to his left superficial femoral cutaneous nerve, and pursuant to CPLR 3025(b), for leave to amend the complaint, in effect, to specify an amount of damages in the ad damnum clause.
The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to amend the notice of claim. A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability (see Robinson v. City of New York, 138 A.D.3d 1093, 1094, 30 N.Y.S.3d 311 ; Priant v. New York City Tr. Auth., 126 A.D.3d 774, 5 N.Y.S.3d 473 ; Ahmed v. New York City Hous. Auth., 119 A.D.3d 494, 495, 989 N.Y.S.2d 105 ; Gordon v. City of New York, 79 A.D.2d 981, 981, 434 N.Y.S.2d 478 ). Here, the proposed amendments to the notice of claim asserted a new injury and added a new theory of liability (see Robinson v. City of New York, 138 A.D.3d at 1094, 30 N.Y.S.3d 311 ; Priant v. New York City Tr. Auth., 126 A.D.3d at 775, 5 N.Y.S.3d 473 ; Olivera v. City of New York, 270 A.D.2d 5, 6, 704 N.Y.S.2d 42 ; Johnson v. County of Suffolk, 238 A.D.2d 480, 657 N.Y.S.2d 55 ). These amendments were not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50–e(6) (see Robinson v. City of New York, 138 A.D.3d at 1094, 30 N.Y.S.3d 311 ; Priant v. New York City Tr. Auth., 126 A.D.3d at 775, 5 N.Y.S.3d 473 ).
The Supreme Court also properly denied that branch of the plaintiff's motion which was pursuant to CPLR 3025(b) for leave to amend the complaint, in effect, to specify an amount of damages in the ad damnum clause. A pleading asserting a claim for medical malpractice must contain a prayer for general relief, but shall not state a specific dollar demand in the ad damnum clause (see CPLR 3017[c] ; Braun v. Ahmed, 127 A.D.2d 418, 426, 515 N.Y.S.2d 473 ; Vargas v. Rosal–Arcillas, 108 Misc.2d 881, 884, 438 N.Y.S.2d 986 ).
The plaintiff's remaining contention, which is based on new factual allegations, is improperly raised for the first time on appeal and, therefore, is not properly before this Court (see Salcedo v. Demon Trucking, Inc., 146 A.D.3d 839, 44 N.Y.S.3d 543 ; PennyMac Corp. v. Chavez, 144 A.D.3d 1006, 42 N.Y.S.3d 239 ; Tokio Mar. and Fire Ins. Co. v. Abdor–Florida, Inc., 35 A.D.3d 724, 824 N.Y.S.2d 907 ).