Thomas Sharpe v Charles A. Gardner

Sharpe v Gardner 2003 NY Slip Op 18110 [1 AD3d 653] November 6, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Thomas Sharpe, Appellant,
v
Charles A. Gardner, Respondent, et al., Defendants.

— Mercure, J. Appeal from an order of the Supreme Court (Plumadore, J.), entered September 19, 2002 in St. Lawrence County, which denied plaintiff's motion for leave to file an amended complaint.

In June 1996, plaintiff, a physician, retained defendants Charles A. Gardner (hereinafter defendant) and Gary W. Miles to commence a proceeding against a hospital that allegedly had interfered with plaintiff's practice of medicine. In August 1999, plaintiff commenced this legal malpractice action against defendant, Miles and their firm, essentially alleging that defendants failed to pursue an order to show cause designed to restore his privileges at the hospital and that they improperly forwarded information to opposing counsel in an unrelated medical malpractice action commenced against plaintiff. In September 1999, defendant moved to dismiss the complaint against himself and the firm. Plaintiff cross-moved, seeking leave to amend the complaint. Supreme Court (Demarest, J.), among other things, denied the cross motion to amend and dismissed the complaint against defendant as time-barred. Plaintiff thereafter moved for reargument in February 2000. Treating plaintiff's motion as one for renewal, Supreme Court (Plumadore, J.) denied the motion, concluding that plaintiff failed to show any new facts supporting the motion to amend. In March 2002, plaintiff moved again for leave to amend the complaint, seeking to add a cause of action against defendant. Supreme Court denied the motion and plaintiff appeals.

Whether treated as a motion to renew the prior request for leave to amend or a new motion to amend, we agree with Supreme Court that plaintiff fails to allege any new facts demonstrating that the action as against defendant is not time-barred. Absent a showing of merit by plaintiff, we cannot say that Supreme Court abused its discretion in denying the motion (see Krouner v Travis, 290 AD2d 917, 918-919 [2002]; Ferran v Williams, 281 AD2d 819, 820-821 [2001], lv dismissed 97 NY2d 653 [2001]; Curtin v Community Health Plan, 276 AD2d 884, 886 [2000]).

Cardona, P.J., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.