Opinion
2018–00617 Index No. 56791/16
06-19-2019
Doreen GIOIO, etc., Appellant, v. CHING FU LIN, etc., et al., Respondents.
Cohn & Spector, White Plains, N.Y. (Julius W. Cohn of counsel), for appellant. Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael L. Manci of counsel), for respondents Ching Fu Lin and Westchester Anesthesiologists, P.C. Shaub, Ahmuty, Citrin & Spratt, LLP, New York, N.Y. (Christopher Simone and Nicholas Tam of counsel), for respondent Phelps Memorial Hospital Center.
Cohn & Spector, White Plains, N.Y. (Julius W. Cohn of counsel), for appellant.
Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael L. Manci of counsel), for respondents Ching Fu Lin and Westchester Anesthesiologists, P.C.
Shaub, Ahmuty, Citrin & Spratt, LLP, New York, N.Y. (Christopher Simone and Nicholas Tam of counsel), for respondent Phelps Memorial Hospital Center.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated November 21, 2017. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to amend the complaint to add a claim for punitive damages.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b] ), a motion for leave to amend should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see J.W. Mays, Inc. v. Liberty Mut. Ins. Co., 153 A.D.3d 1386, 1387, 61 N.Y.S.3d 144 ). Further, "[w]hether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed" ( Pergament v. Roach, 41 A.D.3d 569, 572, 838 N.Y.S.2d 591 ).
Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend the complaint to add a claim for punitive damages. The plaintiff's allegations are palpably insufficient to demonstrate that the defendants' conduct evinced a high degree of moral culpability or constituted willful or wanton negligence or recklessness (see Dmytryszyn v. Herschman, 78 A.D.3d 1108, 1109–1110, 912 N.Y.S.2d 107 ; Hill v. 2016 Realty Assoc., 42 A.D.3d 432, 839 N.Y.S.2d 801 ; see generally Gomez v. Cabatic, 159 A.D.3d 62, 70 N.Y.S.3d 19 ).
LEVENTHAL, J.P., ROMAN, LASALLE and CHRISTOPHER, JJ., concur.