Opinion
133 CA 18–01434
04-26-2019
Mary M. FANELLI, Administratrix ON BEHALF OF the ESTATE OF Monica URTZ, Deceased, Plaintiff–Respondent, v. UPSTATE CEREBRAL PALSY, INC., Kayla Taft, Defendants–Appellants, et al., Defendants.
GOLDBERG SEGALLA LLP, SYRACUSE (HEATHER K. ZIMMERMAN OF COUNSEL), FOR DEFENDANTS–APPELLANTS. JOHN J. RASPANTE, UTICA, FOR PLAINTIFF–RESPONDENT.
GOLDBERG SEGALLA LLP, SYRACUSE (HEATHER K. ZIMMERMAN OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
JOHN J. RASPANTE, UTICA, FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the amended order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Plaintiff commenced this action seeking damages for decedent's wrongful death and conscious pain and suffering. Because decedent, who suffered from developmental disabilities, was unable to chew and swallow normally, specific protocols were in place to prevent her from choking on her food. Despite those protocols, decedent died after choking on a doughnut while in defendants' care. In her complaint, plaintiff alleged that defendants were negligent in failing to employ the required protocols. Plaintiff later moved for leave to amend the complaint to add a cause of action for gross negligence and a demand for punitive damages. We agree with defendants-appellants that Supreme Court abused its discretion in granting the motion (see Wojtalewski v. Central Sq. Cent. Sch. Dist., 161 A.D.3d 1560, 1561, 77 N.Y.S.3d 255 [4th Dept. 2018] ). Although leave to amend a pleading, as a general rule, should be freely granted (see CPLR 3025 ; Baker v. County of Oswego, 77 A.D.3d 1348, 1350, 909 N.Y.S.2d 600 [4th Dept. 2010] ), here we conclude that the proposed amendment is patently meritless because plaintiff's allegations sound only in ordinary negligence (see Carthon v. Buffalo Gen. Hosp. Deaconess Skilled Nursing Facility Div., 83 A.D.3d 1404, 1405, 921 N.Y.S.2d 746 [4th Dept. 2011] ; see generally Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823–824, 595 N.Y.S.2d 381, 611 N.E.2d 282 [1993] ). We therefore reverse the amended order and deny the motion.