| Shahid v New York City Health & Hosps. Corp. |
| 2008 NY Slip Op 00483 [47 AD3d 798] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Maryum Shahid, Respondent, v New York City Health &Hospitals Corporation et al., Appellants. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and RobertOrtiz of counsel), for appellant Bum Y. Park. Morrison & Wagner, New York, N.Y. (Eric H. Morrison of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendant New York CityHealth & Hospitals Corporation appeals, as limited by its brief, from stated portions of an orderof the Supreme Court, Queens County (Elliot, J.), dated November 16, 2006, which, inter alia,denied those branches of its motion which were for summary judgment dismissing the complaintinsofar as asserted against it or, in the alternative, to preclude the plaintiff from offering evidenceat trial of certain economic damages set forth in the plaintiff's supplemental bill of particulars,and the defendant Bum Y. Park separately appeals, as limited by his brief, from stated portions ofthe same order which, inter alia, denied those branches of his motion which were to preclude theplaintiff from offering, at trial, the testimony of certain expert witnesses and evidence of certaineconomic damages set forth in the plaintiff's supplemental bill of particulars.
Ordered that the appeal by the defendant Bum Y. Park is dismissed as academic, withoutcosts or disbursements, in light of our determination in Shahid v New York City Health &Hosps. Corp., 47 AD3d 800 [2008] [decided herewith]; and it is further,[*2]
Ordered that the order is affirmed insofar as appealedfrom by the defendant New York City Health & Hospitals Corporation, and it is further,
Ordered that one bill of costs is awarded to the respondent, payable by the defendant NewYork City Health & Hospitals Corporation.
Relevant factual background is set forth in the companion appeal (see Shahid v NewYork City Health & Hosps. Corp., 47 AD3d 800 [2008] [decided herewith]).
In support of that branch of the motion of the defendant New York City Health & HospitalsCorporation (hereinafter HHC) which was for summary judgment dismissing the complaintinsofar as asserted against it, HHC submitted the affidavit of a pediatric expert who opined, to areasonable degree of medical certainty, that HHC administered an adequate course of antibiotictreatment during the plaintiff's hospital stay to effectively prevent hearing loss, whether causedby pneumonia or meningitis, and the affidavit of a radiologist, who opined that the plaintiff'shearing loss was caused by a congenital abnormality. This evidence was sufficient to establishHHC's prima facie entitlement to judgment as a matter of law (see Rebozo v Wilen, 41 AD3d457, 458 [2007]; Thompson vOrner, 36 AD3d 791, 791-792 [2007]; Williams v Sahay, 12 AD3d 366, 368 [2004]).
In opposition, the plaintiff submitted the affidavit of an expert who opined that HHC failedto diagnose and adequately treat the plaintiff for meningitis, which caused her hearing loss. Theplaintiff also submitted the affirmation of a radiologist, who opined that the plaintiff did notsuffer from a congenital abnormality and that her hearing loss had been caused by meningitis.Contrary to HHC's contentions, the opinions of the plaintiff's experts were based upon evidencein the record and raised triable issues of fact as to whether HHC departed from acceptedstandards of medical practice in failing to diagnose and adequately treat meningitis, therebycausing the plaintiff's injuries. Summary judgment may not be awarded in a medical malpracticeaction where the parties adduce conflicting opinions of medical experts (see Shields v Baktidy, 11 AD3d671, 672 [2004]).
The Supreme Court correctly denied that branch of HHC's motion which was to preclude theplaintiff from offering evidence at trial of certain economic damages set forth in the plaintiff'ssupplemental bill of particulars. Pursuant to CPLR 3043 (b), a plaintiff may serve a supplementalbill of particulars containing "continuing special damages and disabilities" without leave of thecourt if it alleges "no new cause of action . . . or new injury." Where, as here, theplaintiff seeks to allege continuing consequences of the injuries suffered and described in aprevious bill of particulars, rather than new and unrelated injuries, the bill is supplemental, andleave of the court is not required (see Tate v Colabello, 58 NY2d 84, 87 [1983]; Fortunato v Personal Woman's Care,P.C., 31 AD3d 370, 371 [2006]; Zenteno v Geils, 17 AD3d 457, 458 [2005]).
HHC's remaining contention is without merit. Skelos, J.P., Santucci, Lifson and Carni, JJ.,concur.