Francis v. Nassau Health Care Corp.

Oct 24, 2005
Versions:22 A.D.3d 715
802 N.Y.S.2d 748

In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated September 14, 2004, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the claims for future lost wages and pecuniary loss, and granted the plaintiffs’ cross motion for leave to amend the complaint to add a cause of action to recover damages for wrongful death.

Ordered that the order is affirmed insofar as appealed from, with costs.

Amendment of the complaint in this medical malpractice action to include a cause of action to recover damages for wrongful death “will not significantly expand the scope of proof or the relevant legal considerations on the issue of liability. The amendment will, of course, introduce new aspects on the issue of damages, but [the] defendant[s do] not suggest how the failure to bring this cause within two years after the decedent‘s death has prejudiced [them] in the assembly or introduction of evidence in support of [their] defense as to such additional elements of damage” (Caffaro v Trayna, 35 NY2d 245, 251 [1974]). Therefore, the original complaint gave notice of the transactions and occurrences on which the wrongful death cause of action in the amended complaint is based, and the cause of action to recover damages for wrongful death was timely interposed (see CPLR 203).

The defendants’ remaining contentions are without merit.

Florio, J.P., Crane, Fisher and Dillon, JJ., concur.