This medical malpractice action was commenced by filing on June 6, 2013 and the instant motion, solely on behalf of the defendant Jan Close, M.D. ("Close") seeks an order of dismissal pursuant to CPLR §§ 214-a, 3043, and 3211 (a) (5). The case status is pre-note of issue and the allegations are that plaintiff presented to Canton-Potsdam Hospital ("CPH") on September 8 and 19, 2012, due to what is described as a new episode of severe lower back pain - following a May 2012 right hip arthroplasty. She alleges treatment by each of the defendants.

On September 8, 2012 Close was an emergency physician employee of a non-party, Northstar Physicians, a firm supplying physicians to CPH. The movant claims there is no specific September 8, 2012 allegation pertaining to Close despite the repeated refrain of "at all times mentioned herein." The complaint also alleges, at separate paragraphs, plaintiff presented to CPH on September 8, 2012, that the defendant Close was an employee of CPH, and that "at all times mentioned herein [Close] had a duty ...to render medical services...to [the] plaintiff.^[FN1]

The pleading progresses to thereafter allege the plaintiff's pain worsened and she "returned to CPH on September 19, 2012" where care and treatment was provided by the defendants and, or, their employees agents, contractors and, or, sub-contractors. The complaint [*2]spherically references Close as having committed malpractice on that date as well. A Second Cause of Action against Close alleges failure to obtain plaintiff's informed consent, although no date is alleged. There is a Third Cause of Action against Close as a derivative claim on behalf of the co-plaintiff spouse.

The plaintiffs' initial bill of particulars, amplifying what the pleadings already indicate, asserts that Close treated plaintiff and committed malpractice on September 19, 2012. A supplemental bill of particulars dated July 30, 2015 recites the initial bill of particulars nearly verbatim, but includes the date of September 8, 2012 as an alleged date of malpractice pertaining to Close. The movant characterizes the supplement as a new theory and moves the question before the Court as to whether plaintiffs can serve a supplemental bill of particulars with a new date of alleged medical malpractice where the statute of limitations has expired as to that malpractice.

Where "the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the ... bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars" (Erickson v. Cross Ready Mix, Inc., 98 AD3d 717, 718, [2d Dept. 2012]. This is permitted by CPLR §3043(b) as a matter of right, but only "with respect to claims of continuing special damages and disabilities." The supplemental bill can only expand on the extent of the injuries and damages as long as it is served at least thirty days before trial. This provision cannot be used to add new grounds or theories.

By contrast, an amended bill of particulars may include new injuries, new theories of liability, or wholly new categories of special damages not previously asserted and CPLR §3402(b) authorizes this once as of course prior to the filing of a note of issue. Vargas v. Villa Josefa Realty Corp., 28 AD3d 389 [1st Dept. 2006]; Scherrer v. Time Equities, Inc., 27 AD3d 208; Barrera v. City of New York, 265 AD2d 516 [1st Dept. 2006]; Pines v. Muss Dev. Co., 172 AD2d 600 [2d Dept. 1991].

The Court finds that plaintiffs' instrument dated July 30, 2015 is more properly characterized as an amended bill of particulars because its purpose was not to update allegations of special damages previously asserted but, theoretically, to add a new claim a for a malpractice that occurred on September 8, 2012. (see Pearce v Booth Mem. Hosp., 152 AD2d 553, 554 [2d Dept. 1989]; see also CPLR 3043 [b]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3042:14, at 539-540; C3043:2, at 602). Bauch v Verrilli, 176 AD2d 1116, 1116-1117 [3d Dept. 1991]. Here, the distinction between an amended bill and a supplemental bill is irrelevant because either could be served without leave of court in the current proceduralm posture. Accordingly, as an amended bill of particulars it is properly served.

The further inquiry is whether the statute of limitations prevents the amendment since the earlier date of malpractice is not mentioned in the bill of particulars. This Court declines the exclusion as the earlier date is necessarily intertwined with the information already conveyed in the pleadings and of which this defendant should have been aware. Had this information not [*3]been mentioned in either bill of particulars the remedy still ought not be exclusion where such proof necessarily flows from the information conveyed in the pleadings. (see Boyer v. Kamthan, 130 AD3d 1176, [3d Dept. 2015]; Sherry v. North Colonie Cent. School Dist., 39 AD3d 986, 991, [3d Dept. 2007]; D'Angelo v. Bryk, 205 AD2d 935, 936—937 [3d Dept. 1994]; Van Derzee v. Knight—Ridder Broadcasting, 185 AD2d 1011, 1011 [3d Dept. 1992].

A further ground of denial on statute of limitations ground is the very language of the complaint as already noted. The complaint's inclusion of the earlier date contradicts the defendant's notion that the July 30, 2015 instrument contains a new fact.

Lastly, whether the further disclosure was even necessary is left for the reflection of those who drafted a complaint generously punctuated with at "all times mentioned herein" - having already included the earlier date and nevertheless perceiving, perhaps for cautionary reasons over two years hence, to either amend or supplement the disclosure.

Based upon the foregoing, the motion on behalf of defendant Close is denied in its entirety without costs.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 18, 2015 and the papers enumerated below. Plaintiffs are hereby directed to serve a copy of the filed Decision and Order with notice of entry as outlined in CPLR 5513.