Mantilla v. Lutheran Medical Center , 934 N.Y.2d 311 ( 2011 )

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 plaintiffs mesh patch was defective, and/or that plaintiffs 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 plaintiffs corrective surgery, performed in January 2005 (see generally Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364 [2007]). Concur — Saxe, J.E, Sweeny, Acosta, DeGrasse and Abdus-Salaam, JJ.