HILL v. New York Presbyterian Hospital-Weill Cornell Center, respondent. (2007)

In an action to recover damages for medical malpractice and wrongful death, the plaintiffs appeal from stated portions of an order of the Supreme Court, Kings County (Schmidt, J.), dated August 18, 2005, which, inter alia, denied that branch of their motion which was for leave to amend the complaint to add a claim for punitive damages against the defendant New York Presbyterian Hospital-Weill Cornell Center.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiffs' contention, the Supreme Court properly denied that branch of their motion which was for leave to amend the complaint to add a claim for punitive damages against the defendant New York Presbyterian Hospital-Weill Cornell Center (hereinafter Cornell).   Although leave to amend pleadings should be liberally granted (see CPLR 3025 [b] ), “it is equally true that the court should examine the sufficiency of the merits of the proposed amendment,” and, where the proposed amendment is “palpably insufficient as a matter of law or is totally devoid of merit, leave to amend should be denied” (Morton v. Brookhaven Mem. Hosp., 32 A.D.3d 381, 820 N.Y.S.2d 294;  see Lee v. Health Force, 268 A.D.2d 564, 702 N.Y.S.2d 108).   Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces “a high degree of moral culpability,” or constitutes “willful or wanton negligence or recklessness” (Lee v. Health Force, supra;  quoting Rey v. Park View Nursing Home, 262 A.D.2d 624, 627, 692 N.Y.S.2d 686).   The plaintiffs' proposed amendment was palpably insufficient as a matter of law to show such conduct (see Morton v. Brookhaven Mem. Hosp., supra;  Arnold v. Siegel, 296 A.D.2d 363, 364, 745 N.Y.S.2d 431;  Lee v. Health Force, supra;  Stransky v. Tannenbaum, 262 A.D.2d 301, 691 N.Y.S.2d 540;  Federal Deposit Ins. Corp. v. Lefcon Partnership, 250 A.D.2d 643, 672 N.Y.S.2d 416;  Spinosa v. Weinstein, 168 A.D.2d 32, 41-43, 571 N.Y.S.2d 747).

To the extent the plaintiffs raise issues concerning their request for sanctions against counsel for Cornell and the defendant Roger Yurt, we do not reach those issues because they were not addressed by the Supreme Court and, thus, remain pending and undecided (see Matter of Wolfert v. Wolfert, 35 A.D.3d 870, 828 N.Y.S.2d 156;  G & L Indus./Old Action Labs v. Bell Bates Co., 293 A.D.2d 511, 512, 739 N.Y.S.2d 853;  Katz v. Katz, 68 A.D.2d 536, 543, 418 N.Y.S.2d 99).

The plaintiffs' remaining contention is not properly before this court.