Opinion
950 CA 20-01407
01-28-2022
KATHLEEN QUINN-JACOBS AND DAVID QUINN-JACOBS, PLAINTIFFS-APPELLANTS, v. ROSS MOQUIN, M.D., ET AL., DEFENDANTS, AND CROUSE HOSPITAL, DEFENDANT-RESPONDENT. (APPEAL NO. 1.)
EDELMAN & EDELMAN, P.C., NEW YORK CITY (JOHN CHERUNDOLO OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. GALE GALE & HUNT, LLC, SYRACUSE (ANDREW R. BORELLI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
EDELMAN & EDELMAN, P.C., NEW YORK CITY (JOHN CHERUNDOLO OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
GALE GALE & HUNT, LLC, SYRACUSE (ANDREW R. BORELLI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Supreme Court, Onondaga County (Gerard J. Neri, J.), entered October 13, 2020. The order, insofar as appealed from, denied that part of the motion of plaintiffs seeking leave to amend their bill of particulars.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this medical malpractice action, plaintiffs appeal, in appeal No. 1, from an order that denied their motion seeking, inter alia, leave to amend the bill of particulars to add the names of certain individuals for whose acts plaintiffs alleged Crouse Hospital (defendant) was vicariously liable. In appeal No. 2, plaintiffs appeal from a subsequent order that denied their motion for leave to renew with respect to the prior order. We affirm in both appeals.
In appeal No. 1, we conclude that Supreme Court did not abuse its discretion in declining to grant leave to amend the bill of particulars to add "Donna Diliberto, R.N." as an individual for whose acts defendant was vicariously liable (see Silber v Sullivan Props., L.P., 182 A.D.3d 512, 513 [1st Dept 2020]; see generally Raymond v Ryken, 98 A.D.3d 1265, 1266 [4th Dept 2012]). Inasmuch as the claims underlying the remaining proposed amendments to the bill of particulars had been dismissed upon defendant's prior motion for summary judgment (Quinn-Jacobs v Moquin, 195 A.D.3d 1463, 1464 [4th Dept 2021]), there was no basis for plaintiffs to seek leave to amend the bill of particulars to make those remaining proposed amendments (see St. John v State of New York, 124 A.D.3d 1399, 1400 [4th Dept 2015]; Farruggia v Town of Penfield, 119 A.D.3d 1320, 1322 [4th Dept 2014], lv denied 24 N.Y.3d 906 [2014]).
In appeal No. 2, contrary to plaintiffs' contention, we conclude that they failed to present any new facts or a change in law warranting leave to renew (see CPLR 2221 [e] [2], [3]; see generally Boreanaz v Facer-Kreidler, 2 A.D.3d 1481, 1482 [4th Dept 2003]).