James v. Wormuth

Mar 23, 2012
Appeal No. 1
Versions:93 A.D.3d 1290
940 N.Y.S.2d 499

Appeal from a judgment of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), entered January 19, 2011 in a medical malpractice action. The judgment dismissed the amended complaint.

It is hereby ordered that the judgment so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this medical malpractice action seeking damages arising from an operative procedure to remove a node from her lung. On a prior appeal, we reversed the order insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint and reinstated the complaint (James v Wormuth, 74 AD3d 1895 [2010]). The Supreme Court thereafter granted plaintiff‘s motion seeking to amend the complaint, and a jury trial followed. Plaintiff appeals from a judgment granting the motion of defendants at the close of plaintiff‘s case to dismiss the amended complaint pursuant to CPLR 4401. We affirm.

Plaintiff contends that reversal is required because this Court‘s prior order is the law of the case. We reject that contention. “[T]he denial of defendants’ motion for summary judgment did not serve as law of the case precluding the subsequent motion to dismiss” the amended complaint at the close of plaintiff‘s case (Bukowski v Clarkson Univ., 86 AD3d 736, 739 [2011]; see Smith v Hooker Chem. & Plastics Corp., 125 AD2d 944, 945 [1986], affd 70 NY2d 994 [1988], rearg denied 71 NY2d 995 [1988]).

Contrary to plaintiff‘s further contention, we conclude, based on the record before us, that the court properly granted defendants’ motion