Selman v South Shore University Hospital
Attorneys and Parties
Brief Summary
Healthcare liability arising from a patient's hospitalization during the COVID-19 pandemic, including whether defendants could invoke immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former article 30-D, sections 3080-3082) [COVID-era statute providing certain immunity to healthcare providers for care impacted by the emergency; later repealed by L 2021, ch 96, § 1], and whether the plaintiff could amend to add gross negligence allegations.
The Supreme Court denied the defendants' motion under CPLR 3211(a) [rule authorizing a motion to dismiss a pleading] to dismiss the complaint and granted the plaintiff's cross-motion under CPLR 3025(b) [rule providing that leave to amend pleadings shall be freely given] for leave to amend the complaint.
The Appellate Division modified the order only to the extent of replacing the denial of the motion to dismiss on the merits with a denial as academic.
Because the amended complaint was properly allowed, the motion directed at the original complaint should not have been decided on the merits. The defendants failed to oppose the amendment request in the trial court and therefore did not meet their burden to show prejudice, surprise, or lack of merit, and their argument that the gross negligence claim was insufficient was raised for the first time on appeal.
Background
The plaintiff sued to recover damages for personal injuries allegedly sustained during her hospitalization from April 16, 2020, through June 1, 2020. The defendants moved to dismiss, arguing among other things that they were immune under the EDTPA. The plaintiff cross-moved for leave to amend the complaint to add, among other allegations, a cause of action for gross negligence.
Lower Court Decision
The Supreme Court, Suffolk County, denied the defendants' CPLR 3211(a) motion to dismiss and granted the plaintiff's CPLR 3025(b) cross-motion for leave to amend the complaint.
Appellate Division Reversal
The Appellate Division affirmed the grant of leave to amend but modified the order by holding that the defendants' motion to dismiss should have been denied as academic rather than denied on the merits. As modified, the order was affirmed, with costs to the plaintiff.
Legal Significance
The decision reinforces that leave to amend under CPLR 3025(b) is to be freely granted absent prejudice, surprise, or clear lack of merit, and the opposing party bears that burden. It also confirms that arguments attacking the sufficiency of a proposed amendment generally cannot be raised for the first time on appeal. Finally, once an amended pleading is permitted, a motion directed at the original complaint is ordinarily academic.
If a party does not oppose a motion for leave to amend in the trial court, it will have difficulty later arguing prejudice or lack of merit, and once amendment is granted, a pending motion to dismiss the original complaint should usually be denied as academic rather than decided on the merits.