| Pagan v Quinn |
| 2008 NY Slip Op 04582 [51 AD3d 1299] |
| May 22, 2008 |
| Appellate Division, Third Department |
| Peter Pagan, Appellant, v David E. Quinn,Respondent. |
—[*1] Thorn, Gershon, Tymann & Bonanni, Albany (Erin Mead of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (Doyle, J.), entered March 26,2007 in Albany County, which denied plaintiff's motion for leave to amend the complaint.
Plaintiff commenced this medical malpractice action in June 2004 seeking to recover forinjuries allegedly sustained in January 2002 when defendant surgically removed a rod previouslyinserted to stabilize a fracture to plaintiff's leg. Following joinder of issue and discovery,defendant served an amended answer amplifying an affirmative defense asserted in the originalanswer. This, in turn, prompted plaintiff to serve an amended complaint, which he contended wasauthorized under CPLR 3025 (a), setting forth causes of action based upon lack of informedconsent and breach of warranty. Defendant rejected the amended complaint, and plaintiffthereafter moved for leave to amend pursuant to CPLR 3025 (b). Supreme Court denied themotion, and this appeal by plaintiff ensued.
Preliminarily, we reject plaintiff's claim that service of the amended answer, whichsubsequently was withdrawn, entitled him to amend his complaint as of right pursuant to CPLR3025 (a). The time to amend the complaint without seeking leave of court had long since expired(see CPLR 3025 [a]), and the amended answer served by defendant raised no new mattersthat would permit plaintiff to reply thereto (see CPLR 3025 [d]). Hence, plaintiff's soleremedy was to move for leave to amend in accordance with CPLR 3025 (b).
In this regard, while leave to amend a pleading generally should be given freely "upon [*2]such terms as may be just" (CPLR 3025 [b]), such determinationnecessarily rests within the sound discretion of the trial court and, absent a clear abuse of thatdiscretion, will not be lightly cast aside (see Ciarelli v Lynch, 46 AD3d 1039, 1040 [2007]; Hayes vRecord, 158 AD2d 874, 874-875 [1990]). Thus, "[w]hile delay alone is insufficient to deny amotion to amend, when unexcused lateness is coupled with prejudice to the opposing party,denial of the motion is justified" (Clarkv MGM Textiles Indus., Inc., 18 AD3d 1006, 1006 [2005]; see Ciarelli v Lynch,46 AD3d at 1040; Moon v Clear Channel Communications, 307 AD2d 628, 629-630[2003]). Moreover, "[a] motion for leave to amend a complaint for personal injury must besupported by competent medical proof showing a causal nexus between the injury and allegedmalpractice" (Hayes v Record, 158 AD2d at 875).
Here, plaintiff's belated explanation for seeking leave to amend his complaint 4½ yearsafter the underlying surgery, more than two years after service of the original complaint and twomonths prior to the scheduled filing of the note of issue—articulated for the first time incounsel's reply affidavit—falls short of the mark. Neither plaintiff's bankruptcy proceedingnor the untimely death of the trial judge initially assigned to this matter constitutes satisfactoryexcuses for the delay (cf. Moon v Clear Channel Communications, 307 AD2d at 630),and plaintiff has offered no other cogent explanation therefor.
As to the issue of prejudice, inasmuch as "lack of informed consent is a distinct cause ofaction requiring proof of facts not contemplated by an action based merely on allegations ofnegligence" (Jolly v Russell, 203 AD2d 527, 528 [1994]) and, further, is one that"necessarily depends on the recollections of the parties which unavoidably diminish over time"(Evans v Kringstein, 193 AD2d 714, 715 [1993] [internal quotation marks and citationomitted]; see Parese v Gregory B. Shankman, M.D., P.C., 300 AD2d 1087, 1088 [2002]),we agree with Supreme Court that defendant would be prejudiced by the proposed amendment.Even if we were not so persuaded, plaintiff's breach of warranty/contract claim "is legallyredundant, and may not be pursued unless plaintiff can prove that, within the context of medicaltreatment, defendant expressed a specific promise to effect a cure or to accomplish some definiteresult" (Scalisi v New York Univ. Med.Ctr., 24 AD3d 145, 147 [2005]). Our review of the record discloses no such promise.Similarly, plaintiff's conclusory assertion that he was not informed of the relevant risks of thesurgical procedure is insufficient to establish the requisite causal nexus between defendant'sconduct and plaintiff's injury. Under such circumstances, we cannot say that Supreme Courtabused its discretion in denying plaintiff's motion for leave to amend.
Cardona, P.J., Peters and Kane, JJ., concur. Ordered that the order is affirmed, with costs.