Nella Manko, appellant, v. Lenox Hill Hospital, respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Nella Manko, appellant, v. Lenox Hill Hospital, respondent.

2009–04744 (Index No. 30972/04)

Decided: June 4, 2014

THOMAS A. DICKERSON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN SYLVIA O. HINDS–RADIX, JJ. Nella Manko, Brooklyn, N.Y., appellant pro se. Garson, Decorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Jaimee A. Kass, and Anna R. Schwartz of counsel), for respondent.

Submitted—April 3, 2014

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 22, 2009, which denied her motion for leave to amend the complaint to add additional defendants.

ORDERED that the order is affirmed, with costs.

In Manko v. Mannor (55 AD3d 471), a medical malpractice action commenced by the same plaintiff as appears in this action, the Appellate Division, First Department, inter alia, granted the defendants' motions to dismiss the complaint as time-barred.   Additionally, the First Department determined that the plaintiff's arguments, “including that the relation back and continuous treatment doctrines preclude dismissal of the complaint,” were “unavailing” (id.).

The plaintiff now seeks to amend her complaint in this action to add the same defendants as were named in Manko v. Mannor and to assert the same causes of action against them as were asserted against them in that case.

The Supreme Court correctly concluded that the assertion of the same causes of action against the proposed defendants, and the assertion that the relation-back doctrine applies, are barred by the doctrine of res judicata (see generally Parker v Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347;  Gramatan Home Inv. Corp. v. Lopez, 46 N.Y.2d 481, 485;  Nostrom v. County of Suffolk, 100 AD3d 974, 975).   Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to amend her complaint to add the proposed defendants.

The plaintiff's remaining contentions are without merit.

We decline the defendant's request to impose a sanction upon the plaintiff for pursuing an allegedly frivolous appeal (see 22 NYCRR 130–1.1).

DICKERSON, J.P., AUSTIN, ROMAN and HINDS–RADIX, JJ., concur.

2009–04744 DECISION & ORDER ON MOTION

Nella Manko, appellant, v Lenox Hill Hospital,

respondent.

(Index No. 30972/04)

Motion by the appellant, inter alia, for leave to appeal from an order of the Supreme Court, Kings County, dated January 22, 2009.   Separate motion by the respondent to strike the appellant's appendix and brief on the appeal from the order dated January 22, 2009, on the ground, among others, that they contain or refer to matter dehors the record.

By decision and order on motion of this Court dated June 30, 2010, that branch of the appellant's motion which is for leave to appeal from the order dated January 22, 2009, and that branch of the respondent's motion which is to strike the appellant's appendix and brief on the appeal from the order dated January 22, 2009, on the ground that they contain or refer to matter dehors the record were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motions, and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the appellant's motion which is for leave to appeal from the order dated January 22, 2009, is denied, as this order is appealable as of right (see CPLR 5701[a][2][v] );  and it is further,

ORDERED that the branch of the respondent's motion which is to strike the appellant's appendix and brief filed in connection with the appeal from the order dated January 22, 2009, on the ground that they contain or refer to matter dehors the record is denied.

DICKERSON, J.P., AUSTIN, ROMAN and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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