VASQUEZ v. MS III (2025)

Order, Supreme Court, Bronx County (Michael A. Frishman, J.), entered on or about April 5, 2024, which granted defendants-respondents’ motion to strike certain language from the complaint and bills of particulars pursuant to CPLR 5701(b)(3), unanimously affirmed, without costs.

As an initial matter, the motion court's order which granted defendants’ motion, pursuant to CPLR 3024(b), to strike “careless and reckless” language in the pleadings as prejudicial is not appealable as of right (see CPLR 5701[b][3]), and plaintiff did not seek leave to appeal from this Court (see Le Bel v. Donovan, 96 A.D.3d 415, 417, 945 N.Y.S.2d 669 [1st Dept. 2012];  Wilson v. DiCaprio, 278 A.D.2d 25, 26, 717 N.Y.S.2d 174 [1st Dept. 2000]).  However, in the interest of judicial economy, we deem the notice of appeal from the court's order to be a motion for leave to appeal, grant leave, and address the merits (see Arthur–Brown v. Ramirez, 235 A.D.3d 526, 526, 229 N.Y.S.3d 23 [1st Dept. 2025];  Rodriguez v. Diaz, 217 A.D.3d 612, 613, 192 N.Y.S.3d 94 [1st Dept. 2023]).

Supreme Court providently exercised its discretion in striking certain language from the complaint and bill of particulars pursuant to CPLR 3024(b).  The challenged portions of the pleadings were not material or relevant to plaintiff's action and, under the facts and circumstances of this particular claim, prejudiced defendants.  Plaintiff points to Public Health Law § 2801–d(2), under which punitive damages are available and reckless disregard is an element, but that claim has not been pleaded, nor is it available against these defendants, who did not treat plaintiff in the context of operating a residential health care facility (see generally Dray v. Staten Is. Univ. Hosp., 160 A.D.3d 614, 619–620, 75 N.Y.S.3d 59 [2nd Dept. 2018]).  Nor was the motion untimely where it was made with the permission and at the direction of the motion court.