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ENDOTHELIX, INC. v. VASOMEDICAL, INC.

Index No. 651015/16. Appeal Nos. 15368, 15368A, 15368B. Case Nos. 2021-00992, 2021-00993.

202 A.D.3d 620 (2022)

164 N.Y.S.3d 558

2022 NY Slip Op 01240

Endothelix, Inc., Appellant, v. Vasomedical, Inc., Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 24, 2022.

Attorney(s) appearing for the Case

Schneider Wallace Cottrell Konecky, Houston, TX ( Peter B. Schneider of the bar of the State of Texas, admitted pro hac vice, of counsel), for appellant.

Ortoli Rosenstadt, LLP, New York ( Marc S. Gottlieb of counsel), for respondent.

Concur—Acosta, P.J., Kapnick, Friedman, Singh, Pitt, JJ.

The court providently exercised its discretion in denying plaintiff's motion for leave to amend the complaint to conform to the evidence (CPLR 3025[c]), in view of plaintiff's unjustified extensive delay in seeking leave to amend, and the substantial prejudice that would result to defendant if an amendment were granted. Plaintiff did not seek to amend the complaint until the middle of trial, despite being in possession of the relied upon discovery for two years, and has not...

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