Mantilla v Lutheran Med. Ctr., 2011 NY Slip Op 09021 [90 AD3d 518]

Dcmbr 15, 2011

Appellate Division, First Department

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The Adam Law Office, P.C., New York (Richard Adam of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Michele R. Rita of counsel), for Lutheran Medical Center and Sampath Kumar, M.D., respondents.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Steven C. Mandell of counsel), for Thomas Woloszyn, M.D., respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 19, 2010, which denied plaintiffs’ motions to amend their complaint and bill of particulars, unanimously affirmed, without costs.

Plaintiffs did not meet their burden, as movants, to show the merit of their proposed new medical malpractice theory, i.e., that a mesh patch surgically applied to plaintiff’s abdominal wall during reconstructive surgery was known in the medical industry to be defective, that plaintiff’s mesh patch was defective, and/or that plaintiff’s mesh patch caused her harm ( Schulte Roth & Zabel, LLP v Kassover , 28 AD3d 404 [2006]). Further, plaintiffs have not reasonably explained their delay in asserting their new defective-patch theory, which was brought by motion to amend dated April 9, 2010, when their moving papers indicate that they had reason to believe the mesh was defective at the time of plaintiff’s corrective surgery, performed in January 2005 ( see generally Cherebin v Empress Ambulance Serv., Inc. , 43 AD3d 364 [2007]). Concur—Saxe, J.P., Sweeny, Acosta, DeGrasse and Abdus-Salaam, JJ..