Preview
FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X â€
P ATRICIA ROMANO, Index No. 507940/2016
Plaintiff,
- against -
SHIEL MEDICAL LABORATORY, INC. a/k/a BIM
MEDICAL, INC., SPECTRA LABORATORIES, INC.,
and JACK BASCH,
Defendants.
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DEFENDANTS SHIEL MEDICAL LABORATORY, INC. a/k/a
BIM MEDICAL, INC.'S AND JACK BASCH'S MEMORANDUM OF LAW
IN OPPOSITION TO CROSS MOTION OF PLANTIFF PATRICIA ROMANO
SEEKING LEAVE TO AMEND HER COMPLAINT
GOLDBERG WEPRIN FINKEL
GOLDSTEIN LLP
Kevin J. Nash, Esq.
Attorneys for Defendants Shiel
Medical Laboratory, Inc. a/k/a BIM
Medical, Inc. and Jack Basch
22nd
1501 Broadway, FlOOr
New York, New York 10036
(212) 221-5700
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FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018
This Memorandum of Law is respectfully submitted on behalf of the defendants,
Laboratory"
Shiel Medical Laboratory, Inc. ("Shiel Laboratory") and Jack Basch ("Basch", and together with
"Defendants"
Shiel Laboratory collectively, the "Defendants"), in opposition to the cross motion submitted by
("Plaintiff" "Romano"
plaintiff Patricia Romano or "Romano") seeking leave to amend her complaint.
The cross motion should be denied because Romano has failed to comply with the
applicable statute governing motions for leave to amend a complaint. While leave to amend is
usually freely granted, the motion must be denied under CPLR 3025(b) when, as here, the
Plaintiff fails to append a copy of the proposed amendment blacklined against the original
pleading. See, ID Beauty S.A.S. v. Coty Inc. Headquarters, 2017 WL 4871302 (Sup. Ct. N.Y.
Co. 2017) (denying motion to amend because, among other things, "Plaintiff failed to provide a
blackline or other document highlighting those changes, which appear to pervade the
document"); see also, Scialdone v. Stepping Stone Associates, LP., 148 A.D.3d 950 (2d Dep't
2017); Panagoulopoulos v. Ortiz, 143 A.D.3d 792 (2d Dep't 2016); Dorce v. Gluck, 140 A.D.3d
1111 (2d Dep't 2016).
In this instance, the requirement for a blacklined copy of the amended pleading is
particularly necessary. Although Romano claims in her cross motion that the primary purpose of
error"
the amendment is to correct a "minor factual relating to the date of the purported oral
agreement", in fact, a side by side comparison of the original pleading against the proposed
amended complaint establishes that new paragraphs have been inserted and there are many
changes in the text of the remaining paragraphs. For example, there appears to be an entirely
"20"
new paragraph alleging:
20. Romano began providing services to defendants as an outside
consultant in January, 2007. Based on her observations of Shiel's business
operations during the period when she performed services for Shiel as an
independent consultant, Romano concluded that Shiel conducted its
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FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018
operations in such a slovenly and unprofessional manner that unless
drastic remedial steps were taken, the New York State agencies
responsible for overseeing commercial medical laboratories would very
likely direct in the near future that Shiel cease doing business as a
commercial medical laboratory.
These allegations have nothing whatsoever to do with the purported oral
agreement, when it was allegedly made, or its terms. Without the required blackline, it is
difficult to ascertain whether, as Plaintiff claims, there is no prejudice to the Defendants by the
proposed amendments.
Accordingly, the Defendants respectfully submit that the cross motion should be
denied for failure to comply with CPLR 3025(b).
Dated: New York, New York
June 29, 2018
GOLDBERG WEPRIN FINKEL
GOLDSTEIN LLP
Attorneys for Defendants Shiel Medical Laboratory,
Inc. and Jack Basch
22nd
1501 Broadway, PIOOT
New York, New York 10036
(212) 221-5700
By:
J. Ted Donovan, Esq.
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Preview
FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X †P ATRICIA ROMANO, Index No. 507940/2016 Plaintiff, - against - SHIEL MEDICAL LABORATORY, INC. a/k/a BIM MEDICAL, INC., SPECTRA LABORATORIES, INC., and JACK BASCH, Defendants. ------------------------------------------------------------------------X DEFENDANTS SHIEL MEDICAL LABORATORY, INC. a/k/a BIM MEDICAL, INC.'S AND JACK BASCH'S MEMORANDUM OF LAW IN OPPOSITION TO CROSS MOTION OF PLANTIFF PATRICIA ROMANO SEEKING LEAVE TO AMEND HER COMPLAINT GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP Kevin J. Nash, Esq. Attorneys for Defendants Shiel Medical Laboratory, Inc. a/k/a BIM Medical, Inc. and Jack Basch 22nd 1501 Broadway, FlOOr New York, New York 10036 (212) 221-5700 1 of 3 FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018 This Memorandum of Law is respectfully submitted on behalf of the defendants, Laboratory" Shiel Medical Laboratory, Inc. ("Shiel Laboratory") and Jack Basch ("Basch", and together with "Defendants" Shiel Laboratory collectively, the "Defendants"), in opposition to the cross motion submitted by ("Plaintiff" "Romano" plaintiff Patricia Romano or "Romano") seeking leave to amend her complaint. The cross motion should be denied because Romano has failed to comply with the applicable statute governing motions for leave to amend a complaint. While leave to amend is usually freely granted, the motion must be denied under CPLR 3025(b) when, as here, the Plaintiff fails to append a copy of the proposed amendment blacklined against the original pleading. See, ID Beauty S.A.S. v. Coty Inc. Headquarters, 2017 WL 4871302 (Sup. Ct. N.Y. Co. 2017) (denying motion to amend because, among other things, "Plaintiff failed to provide a blackline or other document highlighting those changes, which appear to pervade the document"); see also, Scialdone v. Stepping Stone Associates, LP., 148 A.D.3d 950 (2d Dep't 2017); Panagoulopoulos v. Ortiz, 143 A.D.3d 792 (2d Dep't 2016); Dorce v. Gluck, 140 A.D.3d 1111 (2d Dep't 2016). In this instance, the requirement for a blacklined copy of the amended pleading is particularly necessary. Although Romano claims in her cross motion that the primary purpose of error" the amendment is to correct a "minor factual relating to the date of the purported oral agreement", in fact, a side by side comparison of the original pleading against the proposed amended complaint establishes that new paragraphs have been inserted and there are many changes in the text of the remaining paragraphs. For example, there appears to be an entirely "20" new paragraph alleging: 20. Romano began providing services to defendants as an outside consultant in January, 2007. Based on her observations of Shiel's business operations during the period when she performed services for Shiel as an independent consultant, Romano concluded that Shiel conducted its 2 of 3 FILED: KINGS COUNTY CLERK 06/29/2018 03:42 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 06/29/2018 operations in such a slovenly and unprofessional manner that unless drastic remedial steps were taken, the New York State agencies responsible for overseeing commercial medical laboratories would very likely direct in the near future that Shiel cease doing business as a commercial medical laboratory. These allegations have nothing whatsoever to do with the purported oral agreement, when it was allegedly made, or its terms. Without the required blackline, it is difficult to ascertain whether, as Plaintiff claims, there is no prejudice to the Defendants by the proposed amendments. Accordingly, the Defendants respectfully submit that the cross motion should be denied for failure to comply with CPLR 3025(b). Dated: New York, New York June 29, 2018 GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP Attorneys for Defendants Shiel Medical Laboratory, Inc. and Jack Basch 22nd 1501 Broadway, PIOOT New York, New York 10036 (212) 221-5700 By: J. Ted Donovan, Esq. 3 of 3