McElroy v Bernstein

2010 NY Slip Op 03079 [72 AD3d 757]

April 13, 2010

Appellate Division, Second Department

As corrected through Wednesday, June 9, 2010

Thomas M. McElroy, Appellant, v Gail Bernstein et al.,Respondents.

—[*1]Antin, Ehrlich & Epstein, P.C., New York, N.Y. (Scott W. Epstein and Anthony V.Gentile of counsel), for appellant.

Tarshis & Hammerman, LLP (Carole R. Finocchio, New York, N.Y. [Marie R. Hodukavich],of counsel), for respondents Gail Bernstein and Herbert Resnick.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Satterfield, J.), dated March 17, 2009, which denied, asacademic, his motion for leave to serve an amended complaint.

Ordered that the order is affirmed, with costs.

Inasmuch as we are affirming the Supreme Court's order awarding summary judgment to thedefendants in this action (see McElroy v Bernstein, 72 AD3d 757 [2010] [decidedherewith]), we find that the Supreme Court properly denied, as academic, the plaintiff's motionfor leave to serve an amended complaint adding his wife as a plaintiff asserting derivative claims(see JP Foodservice Distribs., Inc. vPricewaterhouseCoopers LLP, 33 AD3d 316, 317 [2006]; cf. Long Is. Sav. Bank vSavage, 116 AD2d 512, 516 [1986], affd 69 NY2d 751 [1987]). Fisher, J.P.,Covello, Lott and Sgroi, JJ., concur. [Prior Case History: 2009 NY Slip Op 30583(U).]