Furman Kornfeld & Brennan LLP Prevails on Appeal6/28/10

FKB partner Patrick J. Brennan obtained a unanimous affirmance in the Appellate Division First Department on June 22, 2010 on behalf of a client. Originally asserted as a claim concerning injuries sustained during a hysterectomy performed to address the plaintiff's cervical cancer, plaintiff's counsel sought to add new claims of delay in diagnosing the cancer in an amended bill of particulars served two days before a note of issue was filed. FKB immediately moved to strike the new claims on the ground that the complaint did not give notice of this claim, and therefore the amendment did not relate back to the original claim.

The plaintiff argued that it did, in fact, relate back to the complaint because the hysterectomy was necessitated by the extent of the cancer when first diagnosed, and because the complaint alleged medical malpractice "prior and subsequent" to the date of the hysterectomy surgery. Justice Mary Brigantti-Hughes of Bronx Supreme Court agreed with FKB's reasoning and struck the new claims. Plaintiff took an appeal, which FKB opposed, and on June 22 the Appellate Division issued a unanimous decision affirming Justice Brigantti-Hughes, holding that "an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint". The decision, Martinez v. Fields, can be found at 2010 NY Slip Op 05492.

Patrick J. Brennan's bio / email

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