SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

912 

CA 11-02349 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

JOSEPH D. RAYMOND, SR., PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

TIMOTHY C. RYKEN, M.D., DEFENDANT-RESPONDENT. 

 

COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (DAVID R. DUFLO OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County (Brian

F. DeJoseph, J.), entered March 1, 2011 in a medical malpractice

action. The order, inter alia, denied that part of the motion of

plaintiff seeking leave to amend the complaint and bill of particulars

and conditionally granted that part of plaintiff’s motion seeking an

order of preclusion. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this medical malpractice action

seeking damages for injuries arising from defendant’s alleged

negligent performance of back surgery. Plaintiff thereafter moved,

inter alia, for leave to amend the complaint and bill of particulars

and for a conditional order of preclusion. Supreme Court denied that

part of the motion seeking leave to amend and conditionally granted

that part of the motion seeking to preclude defendant from offering

certain proof at trial. We affirm. 

We note at the outset that plaintiff’s contention that he was

entitled to amend his bill of particulars as of right is not properly

before us. Plaintiff raised that contention for the first time in

support of a motion for leave to reargue and the record on appeal does

not include those motion papers, nor in any event would plaintiff be

entitled to take an appeal from the order denying his motion for leave

to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984). 

We conclude that the court did not abuse its discretion in

denying that part of the motion for leave to amend the complaint and

bill of particulars. The decision whether to grant leave to amend

pleadings rests within the court’s sound discretion and will not be

disturbed absent a clear abuse of that discretion (see Cowsert v
-2- 912 

CA 11-02349 

Macy’s E., Inc., 74 AD3d 1444, 1444-1445). Here, both of plaintiff’s

proposed amended pleadings included a new cause of action, for lack of

informed consent. That cause of action was time-barred, and the

relation-back doctrine pursuant to CPLR 203 (f) does not apply because

the original complaint failed to provide notice thereof (see Rende v

Cutrofello, 226 AD2d 694, 695). “ ‘It is well settled that lack of

informed consent is a distinct cause of action requiring proof of

facts not contemplated by an action based merely on allegations of

negligence’ ” (Parese v Shankman, 300 AD2d 1087, 1088). In addition,

defendant would be prejudiced by an amended complaint and bill of

particulars that added a claim for lack of informed consent because

the new theory of liability would necessarily depend on the

recollections of the parties, which unavoidably diminish over time

and, furthermore, plaintiff failed to present a reasonable excuse for

the delay. “While delay alone is insufficient to deny [leave] to

amend, when unexcused lateness is coupled with prejudice to the

opposing party, denial of [leave to amend] is justified” (Clark v MGM

Textiles Indus., Inc., 18 AD3d 1006, 1006; see Pagan v Quinn, 51 AD3d

1299). 

Finally, plaintiff contends that, beginning in July 2000, he

served discovery demands upon defendant and that he has not received

an adequate response to those demands. The court, however, granted

that part of plaintiff’s motion for a conditional order of preclusion,

requiring defendant to provide plaintiff with his credentialing file. 

To the extent that plaintiff contends in his brief that defendant has

not produced other documents in response to his discovery demands, we

note that plaintiff’s brief does not identify the specific documents

that defendant has not produced. We therefore are unable to review

the merits of his contention. 

Entered: September 28, 2012 Frances E. Cafarell

Clerk of the Court