| Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care,LLC |
| 2017 NY Slip Op 06259 [153 AD3d 798] |
| August 23, 2017 |
| Appellate Division, Second Department |
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| Sylvia Grant, Individually and as Administratrix of the Estate ofCuthbert Grant, Deceased, Appellant, v Brooklyn Center for Rehabilitation &Residential Health Care, LLC, Doing Business as Brooklyn Center for Rehabilitation, Defendant,and Maimonides Medical Center, Respondent. |
Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Jonathan J. Panarellaof counsel), for appellants.
Vaslas Lepowsky Hauss & Danke LLP, Staten Island, NY (Neil F. Schreffler ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), datedMarch 7, 2016, which denied her motion for leave to amend the complaint to add MaimonidesMedical Center as a defendant and granted the cross motion of Maimonides Medical Center foran order dismissing the plaintiff's action "as against it" as time-barred.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action in November 2014 to recover damages, inter alia, foralleged medical malpractice and wrongful death. On or about August 4, 2015, the plaintiff movedfor leave to amend the complaint to add Maimonides Medical Center (hereinafter Maimonides)as a defendant. Maimonides cross-moved for an order dismissing the plaintiff's action "as againstit" on the ground that it was time-barred. The Supreme Court denied the motion and granted thecross motion.
While leave to amend pleadings "shall be freely given" (CPLR 3025 [b]), it may be deniedwhere the proposed amendment is palpably insufficient as a matter of law or is totally devoid ofmerit (see Jenal v Brown, 80 AD3d727 [2011]; Ogilvie v McDonald's Corp., 294 AD2d 550 [2002]; Leszczynski vKelly & McGlynn, 281 AD2d 519 [2001]). Here, the proposed amendment to add acause of action to recover damages for wrongful death against Maimonides was totally devoid ofmerit, as the plaintiff's motion was made after the statute of limitations had expired, more thantwo years after the decedent's death (see EPTL 5-4.1 [1]). Further, in support of its crossmotion, Maimonides submitted evidence establishing, prima facie, that the proposed complaintagainst it, including the medical malpractice cause of action, was time-barred (see id.;CPLR 214-a). Contrary to the [*2]plaintiff's contention, inopposition to Maimonides' showing, she failed to raise a question of fact as to whether the statuteof limitations was tolled by the continuous treatment doctrine (see generally CPLR 214-a;Cooper v Kaplan, 78 NY2d 1103, 1104 [1991]). Accordingly, the Supreme Courtproperly denied the motion and granted the cross motion. Balkin, J.P., Chambers, Barros andBrathwaite Nelson, JJ., concur.