Brown v. New York City Health & Hospitals Corp.

Judgment, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about December 24, 2002, which dismissed the complaint after a jury verdict in defendant’s favor, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 26, 2002, denying plaintiff’s motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff s failure to challenge defense counsel’s tactics in his posttrial motion to set aside the verdict renders this claim unpreserved for appeal (Califano v City of New York, 212 AD2d 146 [1995]). The claim is, in any event, without merit.

Denial of plaintiffs midtrial motion to amend his four-year-old bill of particulars to assert a new theory of liability was a proper exercise of discretion (see Moon v Clear Channel Communications, 307 AD2d 628, 630 [2003]). Defendant would have been prejudiced by deprivation of the opportunity to conduct a deposition of a key witness on this point (see Prince v O’Brien, 256 AD2d 208, 211-212 [1998]). Concur—Buckley, P.J., Nardelli, Andrias and Sullivan, JJ.