        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

992
CA 15-01801
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.


TIMOTHY SHERMAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ST. ELIZABETH MEDICAL CENTER AND KEVIN
LAMPHERE, R.N., DEFENDANTS-RESPONDENTS.


ROBERT F. JULIAN, P.C., UTICA (STEPHANIE A. PALMER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GALE GALE & HUNT, LLC, FAYETTEVILLE (MATTHEW J. VANBEVEREN OF
COUNSEL), FOR DEFENDANT-RESPONDENT ST. ELIZABETH MEDICAL CENTER.


     Appeal from an order of the Supreme Court, Oneida County (Erin P.
Gall, J.), entered July 8, 2015. The order, insofar as appealed from,
granted the motion of defendant St. Elizabeth Medical Center to deem
the original complaint to be the active pleading and denied the cross
motion of plaintiff for leave to file and serve a second amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this negligence and medical
malpractice action seeking damages for injuries that he allegedly
sustained as the result of the care and treatment provided by
defendants when he presented at the emergency room of defendant St.
Elizabeth Medical Center (St. Elizabeth) on two successive days,
suffering from a tooth abscess. In the original complaint, plaintiff
alleged, inter alia, that defendant Kevin Lamphere, R.N., made several
sexually inappropriate comments to plaintiff and massaged plaintiff’s
back as plaintiff waited for an X ray. Plaintiff further alleged that
both defendants deviated from the applicable standard of care in
failing to diagnose and treat his infection in a timely and proper
manner, and in failing to treat the symptoms he experienced as a
consequence of the infection. Plaintiff also alleged that St.
Elizabeth was negligent in maintaining Lamphere on its staff because
it knew that he had a history of inappropriate conduct toward
patients.

     Supreme Court thereafter granted plaintiff’s oral motion for
leave to amend the complaint to add a cause of action alleging
“negligence by the hospital in failing to properly instruct, monitor
and admonish its personnel with respect to proper nurse-patient
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                                                         CA 15-01801

interaction.” After plaintiff filed and served an amended complaint,
St. Elizabeth moved for an order deeming the original complaint to be
the active pleading in the action, and plaintiff cross-moved for leave
to serve a second amended complaint. Plaintiff now appeals from an
order that granted the motion and denied the cross motion.

     Turning first to the cross motion, we note that “[t]he decision
whether to grant leave to amend pleadings rests within the court’s
sound discretion and will not be disturbed absent a clear abuse of
that discretion” (Raymond v Ryken, 98 AD3d 1265, 1266; see Pagan v
Quinn, 51 AD3d 1299, 1300). We perceive no clear abuse of discretion
in the court’s denial of the cross motion for leave to serve a second
amended complaint.

     Nor did the court abuse its discretion in granting the motion of
St. Elizabeth to strike the amended complaint and deem the original
complaint to be the active pleading. In his papers opposing the
motion and supporting the cross motion, plaintiff conceded that the
amendments to the original complaint were unnecessary with respect to
the allegations of malpractice and negligence because the allegations
in the amended complaint were restatements of the allegations in the
original complaint, as amplified by plaintiff’s bills of particulars
(see Raies v Apple Annie’s Rest., 115 AD2d 599, 600). Contrary to
plaintiff’s contention on appeal, however, the amended complaint
otherwise “differed substantially from the proposed amended complaint
that the court granted plaintiff leave to file” (McCagg v Schulte Roth
& Zabel LLP, 74 AD3d 620, 627). We therefore conclude that, inasmuch
as the amended complaint “contains a number of previously unpleaded
factual allegations and new theories” (Moon v Clear Channel
Communications, 307 AD2d 628, 630), the court properly granted the
motion for an order deeming the original complaint to be the active
pleading in the action.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
