The complaint alleges that defendant Dr. Stephen Mezzafonte
In opposing defendant's motion for summary judgment, plaintiff submitted an expert opinion which opined that defendant also negligently interpreted the EC taken in 2011.
Contrary to Supreme Court's conclusion, the complaint and bill of particulars were only sufficient to put defendant on notice of an allegation that, in January 2013, he failed to properly compare the 2013 EC with the 2011 EC contained in decedent's medical record, and determine that a dilation in decedent's aorta had increased. Plaintiffs' papers were insufficient to put defendant on notice of plaintiffs' new theory of liability—raised for the first time in her expert's opinion—that he deviated from the standard of care in August 2011, when interpreting the 2011 EC (see Alvarado v New York City Hous. Auth., 302 A.D.2d 264, 265 [1st Dept 2003]). Here, where negligence is specifically alleged to have occurred only between December 2012 and January 2013, we conclude that the vague, ambiguous, nonspecific and open-ended assertion "prior or subsequent thereto" contained in plaintiffs' bill of particulars failed to put defendant on notice of a claim that he acted negligently in August 2011.
Accordingly, Supreme Court should not have considered plaintiffs' expert opinion as to defendant's actions in August 2011 and should not have found that plaintiffs properly alleged malpractice which occurred in August 2011, and should have dismissed claims of negligence alleged to have occurred prior to December 26, 2012 or after January 21, 2013 and should have stricken the language "prior or subsequent thereto" contained in plaintiffs' bill of particulars.
We have considered the remaining arguments, and find them unavailing.