Opinion
June 22, 2010.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November 21, 2008, which granted defendants' motion to strike plaintiffs amended bill of particulars, unanimously affirmed, without costs.
Before: Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.
The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiffs cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiffs urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment ( see CPLR 214-a; Porubic v Oberlander, 274 AD2d 316), and plaintiff served her amended bill of particulars two days prior to filing the note of issue ( see CPLR 3042 [b]), an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint ( see Behren v Warren Gorham Lamont, Inc., 24 AD3d 132).