

Manko v Gabay (2019 NY Slip Op 06079)





Manko v Gabay


2019 NY Slip Op 06079


Decided on August 7, 2019


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 7, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.


2015-11925
 (Index No. 22148/13)

[*1]Nella Manko, appellant, 
vDavid A. Gabay, etc., et al., respondents, et al., defendants.


Nella Manko, Brooklyn, NY, appellant pro se.
Gordon & Silber, P.C., New York, NY (Andrew B. Kaufman of counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Laura L. Jacobson, J.), dated October 15, 2015. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were pursuant to CPLR 5015 to vacate an order of the same court dated July 9, 2014, and an amended order of the same court dated October 8, 2014, pursuant to CPLR 3025(a) for leave to amend the complaint, and for leave to renew her opposition to that branch of the motion of the defendants David A. Gabay, Law Offices of David A. Gabay, Law Offices of David A. Gabay, P.C., and Gabay Law Group, P.C., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, which had been granted in the order dated July 9, 2014, and the amended order dated October 8, 2014.
ORDERED that the order dated October 15, 2015, is affirmed insofar as appealed from, with costs.
We agree with the Supreme Court's determination to deny that branch of the plaintiff's motion which was pursuant to CPLR 5015 to vacate an order dated July 9, 2014, and an amended order dated October 8, 2014, inter alia, granting that branch of the motion of the defendants David A. Gabay, Law Offices of David A. Gabay, Law Offices of David A. Gabay, P.C., and Gabay Law Group, P.C., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them. The plaintiff failed to establish her entitlement to vacatur of the order and the amended order (see CPLR 5015[a]).
We also agree with the Supreme Court's determination to deny that branch of the plaintiff's motion which was pursuant to CPLR 3025(a) for leave to amend the complaint. The plaintiff could not amend the complaint as of right since the proposed amended complaint was not served within 20 days after service of the complaint or before the period for responding to it expired (see CPLR 3025[a]). Moreover, the proposed amendments were patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220).
The parties' remaining contentions are either without merit or not properly before this Court.
MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


