Douglas v. New York City Transit Authority

Jan 31, 1983
Versions:91 A.D.2d 1057
458 N.Y.S.2d 667
1983 N.Y. App. Div. LEXIS 16393

— In a negligence action to recover damages for personal injuries, the administratrix of plaintiff’s estate appeals from an order of the Supreme Court, Kings County (Bellard, J.), dated April 28,1981, which denied her motion to amend the complaint pursuant to CPLR 3025 (subd [b]) to add a cause of action for wrongful death and to amend the title of the action. Order reversed, without costs or disbursements, and motion *1058granted to the extent of allowing an amendment to the complaint to add a cause of action for wrongful death and to amend the title of the action. Appellant’s time to serve the amended complaint is extended until 20 days after service upon her of a copy of the order to be made hereon, with notice of entry. The title of the action should have been amended to reflect the correct status of the parties. In addition, it was error to deny the appellant’s motion insofar as it sought to plead an additional cause of action for wrongful death. The supporting affirmation provided an adequate basis linking the 1974 injury with decedent’s death in 1980. By granting this motion, we do not express a view as to the ultimate merits of the newly pleaded cause of action. In addition, defendants may engage in all necessary further discovery to explore the nature of the additional cause of action. We note that the proposed amended complaint includes a cause of action for loss of companionship by a sister. However, there is no such cognizable cause of action. Therefore, the proposed third cause of action in the amended complaint must be dismissed. Our determination, however, is without prejudice to the administratrix initiating an action in her individual capacity to recover for personal expenditures, such as funeral expenses. Damiani, J. P., Lazer, Mangano and Thompson,, JJ., concur.