Oberting v. Long Island Jewish-Hillside Medical Center , 473 N.Y.S.2d 842 ( 1984 )

In a medical malpractice action, defendants Long Island Jewish-Hillside Medical Center, Patricia McCarthy and Phillip Lipsitz appeal from an order of the Supreme Court, Queens County (Santucci, J.), dated June 20,1983, which denied that branch of their motion which sought to vacate the recommendation of the medical malpractice panel that there was liability on the part of appellants, and to refer the case for a hearing de novo as to all defendants, before a new panel, and which referred determination of other branches of their motion to the discretion of the Trial Judge. $ Permission to appeal from that portion of the order which denied the branch of appellants’ motion which sought to vacate the recommendation of the medical malpractice panel granted by Justice Weinstein. 11 Appeal from that portion of the order which referred determination of other branches of appellants’ motion to the discretion of the Trial Judge dismissed (see Bagdy vProgresso Foods Corp., 86 AD2d 589). $ Order otherwise affirmed. $ Respondents, appearing separately and filing separate briefs, are awarded one bill of costs. 11 We hold that the “surprise” theory allegedly asserted by plaintiffs at the second hearing before the medical malpractice panel was, in fact, not a “surprise” theory, since the acts of negligence which constituted that claim were sufficiently stated in plaintiffs’ bills of particulars (see Brynes v New York Hosp., 91 AD2d 907; Cirelli v Victory Mem. Hosp., 45 AD2d 856; Patterson v Jewish Hosp. & Med. Center, 94 Mise 2d 680, affd 65 AD2d 553). 11 That portion of the order which deferred determination of the other branches of appellants’ motion to the Trial Judge is not appealable as a matter of right and we decline to grant permission to appeal from it. Mangano, J. P., O’Connor, Weinstein and Lawrence, JJ., concur.