Selman v. South Shore Univ. Hosp.

Opinion

Selman v South Shore Univ. Hosp.

2026 NY Slip Op 04526

July 22, 2026

Appellate Division, Second Department

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

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

Leslye Selman, respondent,

v

South Shore University Hospital, etc., et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2024-04622, (Index No. 602169/22)

Angela G. Iannacci, J.P.

Valerie Brathwaite Nelson

Paul Wooten

Janice A. Taylor, JJ.

Wagner, Doman, Leto & Di Leto, P.C. (Mauro Lilling Naparty LLP, Woodbury, NY [Caryn L. Lilling, Katherine Herr Solomon, and Shaun Martinsen], of counsel), for appellants.

Law Office of Caner Demirayak, Esq., P.C., Brooklyn, NY, for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated April 17, 2024. The order denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and granted the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying, on the merits, the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and substituting therefor a provision denying that motion as academic; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff commenced this action against the defendants to recover damages for personal injuries she allegedly sustained during the course of her hospitalization from April 16, 2020, to June 1, 2020. Thereafter, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, contending, inter alia, that they were entitled to immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1). The plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint, among other things, to add a cause of action alleging gross negligence. In an order dated April 17, 2024, the Supreme Court denied the defendants' motion and granted the plaintiff's cross-motion. The defendants appeal.

"A motion for leave to amend a pleading may be made at any time and leave shall be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Burger v Village of Sloatsburg, 216 AD3d 730, 731 [internal quotation marks omitted]; see CPLR 3025[b]). "'The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion'" (Deutsche Bank Natl. Trust Co. v David, 242 AD3d 1056, 1057, quoting Shields v Darpoh, 207 AD3d 586, 587).

Here, having failed to oppose the plaintiff's cross-motion for leave to amend the complaint, the defendants failed to satisfy their burden of demonstrating any prejudice or surprise [*2](see Fitzpatrick v Pine Bush Cent. Sch. Dist., 239 AD3d 940, 942). Moreover, the defendants' contention that the proposed amended complaint failed to state a cause of action alleging gross negligence and, therefore, that the proposed amendments were palpably insufficient or patently devoid of merit, is improperly raised for the first time on appeal (see Flowers v Mombrun, 212 AD3d 713, 715). Accordingly, the Supreme Court properly granted the plaintiff's cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

In light of the foregoing determination, the Supreme Court should have denied, as academic, the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint (see D'Angelo v Kujawski, 164 AD3d 648, 650), and the parties' contentions related to the merits of that motion have been rendered academic (see Burger v Village of Sloatsburg, 216 AD3d at 732).

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court