Padula v. Bucalo

• Decision Date: 17 April 1995
• Citation: 625 N.Y.S.2d 928,214 A.D.2d 661
• Parties: Patricia PADULA, etc., Appellant, v. Yvette I. BUCALO, etc., et al., Respondents (and a related action).
• Court: New York Supreme Court — Appellate Division

Page 928

625 N.Y.S.2d 928

214 A.D.2d 661

Patricia PADULA, etc., Appellant, v. Yvette I. BUCALO, etc., et al., Respondents (and a related action).

Supreme Court of New York, Appellate Division Second Department.

April 17, 1995.

Abraham Reingold, Brooklyn, for appellant.

Wortman, Fumuso, Kelly, DeVerna & Snyder, Hauppauge (Joseph P. Rosh, on the brief), for respondents Yvette I. Bucalo and Robert Goldberger.

Montfort, Healy, McGuire & Salley, Garden City (E. Richard Rimmels, Jr., of counsel), for respondent Mercy Hospital.

Bivona & Cohen, P.C., New York City (Richard M. Fedrow, of counsel), for respondent Terrace Heights Hosp.

In two related actions to recover damages for medical malpractice (Action No. 1) and wrongful death (Action No. 2) the plaintiff appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), dated October 6, 1993, which denied her motion to (1) vacate a prior order, entered on default, dismissing Action No. 2, (2) amend the complaint in Action No. 1 to add a cause of action for wrongful death, and (3) consolidate action No. 1 and Action No. 2.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

We agree with the Supreme Court that the plaintiff failed to demonstrate the merit of her proposed cause of action for wrongful death. The papers submitted in support of her motion did not establish any causal nexus between the decedent's demise, on the one hand, and the defendants' alleged malpractice, on the other. Under the particular circumstances of this case, the Supreme Court did not err or improvidently exercise its discretion in refusing to vacate its prior order dismissing Action No. 2 (see, CPLR 5015[a], or in denying leave to amend the complaint in Action No. 1 to add a cause of action for wrongful death (see, CPLR 3025; see also, Gendjoian v. Heaps, 186 A.D.2d 534, 588 N.Y.S.2d 357; Saeed v. Boulevard Hosp., 157 A.D.2d 654, 549 N.Y.S.2d 754; Shapiro v. Beer, 121 A.D.2d 528, 503 N.Y.S.2d 593; Mahoney v. Sharma, 110 A.D.2d 627, 487 N.Y.S.2d 114; Fiorentino v. Cobble Hill Nursing Home, 101 A.D.2d 825, 475 N.Y.S.2d 148). In light of our affirmance of the Supreme Court's order insofar as it denied the plaintiff's motion to vacate the order dismissing Action No. 2, the court properly denied the branch of her motion which was to consolidate the two actions since only one action remains pending (see, e.g., Matter of Baranello v. Lehrberger,...