        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

912
CA 11-02349
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


JOSEPH D. RAYMOND, SR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TIMOTHY C. RYKEN, M.D., DEFENDANT-RESPONDENT.


COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (DAVID R. DUFLO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (Brian
F. DeJoseph, J.), entered March 1, 2011 in a medical malpractice
action. The order, inter alia, denied that part of the motion of
plaintiff seeking leave to amend the complaint and bill of particulars
and conditionally granted that part of plaintiff’s motion seeking an
order of preclusion.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries arising from defendant’s alleged
negligent performance of back surgery. Plaintiff thereafter moved,
inter alia, for leave to amend the complaint and bill of particulars
and for a conditional order of preclusion. Supreme Court denied that
part of the motion seeking leave to amend and conditionally granted
that part of the motion seeking to preclude defendant from offering
certain proof at trial. We affirm.

     We note at the outset that plaintiff’s contention that he was
entitled to amend his bill of particulars as of right is not properly
before us. Plaintiff raised that contention for the first time in
support of a motion for leave to reargue and the record on appeal does
not include those motion papers, nor in any event would plaintiff be
entitled to take an appeal from the order denying his motion for leave
to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984).

     We conclude that the court did not abuse its discretion in
denying that part of the motion for leave to amend the complaint and
bill of particulars. The decision whether to grant leave to amend
pleadings rests within the court’s sound discretion and will not be
disturbed absent a clear abuse of that discretion (see Cowsert v
                                 -2-                           912
                                                         CA 11-02349

Macy’s E., Inc., 74 AD3d 1444, 1444-1445). Here, both of plaintiff’s
proposed amended pleadings included a new cause of action, for lack of
informed consent. That cause of action was time-barred, and the
relation-back doctrine pursuant to CPLR 203 (f) does not apply because
the original complaint failed to provide notice thereof (see Rende v
Cutrofello, 226 AD2d 694, 695). “ ‘It is well settled that lack of
informed consent is a distinct cause of action requiring proof of
facts not contemplated by an action based merely on allegations of
negligence’ ” (Parese v Shankman, 300 AD2d 1087, 1088). In addition,
defendant would be prejudiced by an amended complaint and bill of
particulars that added a claim for lack of informed consent because
the new theory of liability would necessarily depend on the
recollections of the parties, which unavoidably diminish over time
and, furthermore, plaintiff failed to present a reasonable excuse for
the delay. “While delay alone is insufficient to deny [leave] to
amend, when unexcused lateness is coupled with prejudice to the
opposing party, denial of [leave to amend] is justified” (Clark v MGM
Textiles Indus., Inc., 18 AD3d 1006, 1006; see Pagan v Quinn, 51 AD3d
1299).

     Finally, plaintiff contends that, beginning in July 2000, he
served discovery demands upon defendant and that he has not received
an adequate response to those demands. The court, however, granted
that part of plaintiff’s motion for a conditional order of preclusion,
requiring defendant to provide plaintiff with his credentialing file.
To the extent that plaintiff contends in his brief that defendant has
not produced other documents in response to his discovery demands, we
note that plaintiff’s brief does not identify the specific documents
that defendant has not produced. We therefore are unable to review
the merits of his contention.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
