Martinez v. Fields

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J), entered November 21, 2008, which granted defendants’ motion to strike plaintiff’s amended bill of particulars, unanimously affirmed, without costs. 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 CELR 214-a; Porubic v Oberlander, 274 AD2d 316 [2000]), and plaintiff served her amended bill of particulars two days prior to filing the note of issue (see CELR 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 [2005]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.