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McElroy v. Bernstein

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 13, 2010

THOMAS M. MCELROY, APPELLANT,
v.
GAIL BERNSTEIN, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated March 17, 2009, which denied, as academic, his motion for leave to serve an amended complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 8699/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Inasmuch as we are affirming the Supreme Court's order awarding summary judgment to the defendants in this action (see McElroy v Bernstein,AD3d , Appellate Division Docket No. 2009-04022 [decided herewith]), we find that the Supreme Court properly denied, as academic, the plaintiff's motion for leave to serve an amended complaint adding his wife as a plaintiff asserting derivative claims (see JP Foodservice Distribs., Inc. v PricewaterhouseCoopers LLP, 33 AD3d 316, 317; cf. Long Is. Sav. Bank v Savage, 116 AD2d 512, 516, affd 69 NY2d 751).

FISHER, J.P., COVELLO, LOTT and SGROI, JJ., concur.

20100413

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