Sober v. Kalina

Oct 27, 1994
Versions:208 A.D.2d 1140
617 N.Y.S.2d 590
1994 N.Y. App. Div. LEXIS 10540
Peters, J.

Appeal from an order of the Supreme Court (Conway, J.), entered March 10, 1993 in Albany County, which denied plaintiff’s motion for leave to serve an amended complaint.

Plaintiff commenced this action alleging that defendants had breached their contract with her to perform surgical breast augmentation procedures by using size 180 implants rather than the agreed upon size 210 implants. Thereafter plaintiff moved for leave to serve an amended complaint to add a cause of action in medical malpractice. The motion was denied for failure to have supplied a supporting affidavit of merit. It is incumbent upon one seeking leave to amend a pleading to make an evidentiary showing that the claim can be supported (Wise v Greenwald, 194 AD2d 850, 851; Mathiesen v Mead, 168 AD2d 736, 737; Anderson Props. v Sawhill Tubular Div., Cyclops Corp., 149 AD2d 950, 950-951; Polak v Schwenk, 115 AD2d 142, 143; Martin v County of Madison, 88 *1141AD2d 162, 165-166, appeal dismissed 59 NY2d 967). Here, plaintiff failed to provide any support for her unspecified claim of medical malpractice. Her attorney’s certificate of merit (see, CPLR 3012-a) does not provide proof of medical malpractice and is insufficient to demonstrate a meritorious claim (see, George v Sastic, 166 AD2d 838). Accordingly, we find no abuse of Supreme Court’s discretion (see, CPLR 3025 [b]) in denying the motion.

Crew III, J. P., Casey and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.