Alcala v Soundview Health Ctr.
2010 NY Slip Op 07684 [77 AD3d 591]
October 28, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 15, 2010


Anthony Alcala, an Infant by His Mother, Yasmin Torres, et al., Appellants,
v
Soundview Health Center, Respondent.

[*1] Grace & Grace, Yorktown Heights (William J. Grace of counsel), for appellants.

Schiavetti, Corgan, DiEdwards Weinberg & Nicholson, LLP, New York (Thomas K. Wittig of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered on or about July 14, 2009, which, to the extent appealed from, denied plaintiffs' motion for leave to amend their bill of particulars, unanimously affirmed, without costs.

Denial of the motion to amend, made 15 years after the alleged malpractice, 12 years after the initial bill of particulars, and more than four years after its first amendment, was a proper exercise of the court's discretion. Not only did plaintiffs fail to offer a reasonable excuse for this inordinate delay, but the proposed amendment had no merit (see Katechis v Our Lady of Mercy Med. Ctr., 36 AD3d 514, 516 [2007]), propounding material changes that prejudicially introduced a new theory of liability (Vega v Lenox Hill Hosp., 235 AD2d 302 [1997]) that defendant had failed to diagnose an incompetent cervix, inconsistent with the previously alleged theory of failure to diagnose a bacterial infection. Concur—Tom, J.P., Friedman, Catterson, Renwick and Manzanet-Daniels, JJ.