Opinion
2001-08956, 2001-09616
Argued May 31, 2002
July 1, 2002.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of (1) an order of the Supreme Court, Rockland County (O'Rourke, J.), dated September 21, 2001, as denied their motion, inter alia, for leave to serve a third amended complaint to add a claim for punitive damages, to disqualify counsel for the defendant Nyack Hospital, to preclude the defendant Nyack Hospital from introducing any evidence at trial as to its affirmative defenses, and to compel discovery, and (2) an order of the same court, dated October 17, 2001, as denied their motion to disqualify counsel for the defendants Neil Siegel, Rockland Podiatry, P.C., and Steven Adler.
Ryan Devereaux, New York, N.Y. (Michael J. Devereaux of counsel), for appellants.
Santangelo, Benvenuto Slattery (James W. Tuffin, Manhasset, N.Y. [Gabriel Mignella] of counsel), for respondents Neil Siegel, Rockland Podiatry, P.C., and Steven Adler.
Gordon Silber, P.C., New York, N.Y. (Wayne E. Cousin and David Henry Sculnick of counsel), for respondent Nyack Hospital.
ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order dated September 21, 2001, as denied that branch of the plaintiffs' motion which was to disqualify counsel for the defendant Nyack Hospital is dismissed, since the plaintiffs are not aggrieved thereby, as they withdrew that branch of the motion before the issuance of the order; and it is further,
ORDERED that the order dated September 21, 2001, is affirmed insofar as appealed from and reviewed; and it is further,
ORDERED that the order dated October 17, 2001, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separately briefs.
The Supreme Court properly exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to serve a third amended complaint to add a claim for punitive damages. The record is devoid of any evidence of willful or wanton negligence or recklessness on the part of the defendants which would warrant such a claim (see Tatzel v. Kaplan, 292 A.D.2d 440; Lee v. Health Force, 268 A.D.2d 564; Rey v. Park View Nursing Home, 262 A.D.2d 624, 627).
The Supreme Court properly denied that branch of the plaintiffs' motion which was to preclude the defendant Nyack Hospital (hereinafter the Hospital) from introducing any evidence at trial as to its affirmative defenses. The Hospital's affirmative defenses are statutory in nature and require no amplification in a further bill of particulars (see Marsala v. Weinraub, 208 A.D.2d 689, 690).
We agree with the Supreme Court that there is no basis to disqualify the counsel for the defendants Neil Siegel, Rockland Podiatry, P.C., and Steven Adler. Consequently, the Supreme Court properly denied that branch of the plaintiffs' motion which sought that relief (cf. Tekni-Plex, Inc. v. Meyner Landis, 89 N.Y.2d 123).
The plaintiffs' remaining contentions are without merit.
FLORIO, J.P., FEUERSTEIN, KRAUSMAN and CRANE, JJ., concur.