| Duquette v Oliva |
| 2010 NY Slip Op 05848 [75 AD3d 727] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Amy Duquette et al., Appellants, v Peter J. Oliva et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah Walker Casey ofcounsel), for respondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Muller, J.), entered October 7, 2009in Clinton County, which denied plaintiffs' motion for leave to amend the complaint.
Plaintiff Amy Duquette (hereinafter plaintiff) initially sought treatment from defendant PeterJ. Oliva, a plastic surgeon, in November 2002, when she became concerned about leakage fromher existing breast implants. After several consultations, plaintiff underwent breast augmentationand areola reduction surgery. Dissatisfied with the results, plaintiff and her husband,derivatively, commenced this action asserting causes of action sounding primarily in medicalmalpractice. Following discovery and joinder of issue, plaintiffs moved for leave to amend thecomplaint pursuant to CPLR 3025 (b) to include a breach of contract claim. Supreme Courtdenied the motion and plaintiffs now appeal.
"While leave to amend pleadings is generally freely given, such determination necessarilyrests within the sound discretion of the trial court and, absent a clear abuse of that discretion, willnot be lightly cast aside" (Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1289[2009] [internal quotation marks and citations omitted]; see Pagan v Quinn, 51 AD3d 1299, 1300 [2008]). "Although delayalone is insufficient to bar amendment, denial of a motion to amend is appropriate when there isprejudice to the opposing party and no showing of a satisfactory excuse for the delay or wherethe moving party fails to make an evidentiary showing that the proposed amendment has somemerit" (Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d at 1289 [internal quotationmarks and citations omitted]). "In assessing the merit of a proposed amendment, however, theproponent is required only to make an evidentiary showing sufficient to support the proposedclaim. A summary judgment standard is not to be applied" (Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d 987,988 [2007] [citations omitted]).
Here, we disagree with Supreme Court's determination that the proposed amendment iscompletely devoid of merit. "A breach of contract claim arising out of the rendering of medicalservices will be held legally sufficient only when it is based on 'an express specialpromise to effect a cure or to accomplish some definite result' " (Delaney v Krafte,98 AD2d 128, 130 [1984], quoting Mitchell v Spataro, 89 AD2d 599 [1982]). WhileOliva's agreement to perform both the breast augmentation and areola reduction procedures,generally, does not allege an express promise to achieve a definite result, the same cannot be saidof the alleged agreement to use a smooth implant as opposed to the textured version actuallyimplanted and to increase plaintiff's breast size to a D cup. Here, plaintiffs' submissions,including deposition testimony and plaintiff's affidavit, provide sufficient evidentiary support topermit the amendment (see Leclaire vFort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [2008]). Plaintiff testified thatOliva recommended the use of smooth implants rather than textured ones to reduce or eliminaterippling. She averred that she and her husband agreed with his recommendation that smoothimplants would be utilized to accomplish this goal. She also testified that, following her surgery,Oliva admitted remembering their agreement about putting in smooth implants, but stated thatwhen he opened up the box containing the implants during surgery and discovered that they were"the wrong ones"—i.e., textured implants—he "put them in anyway." As to theother promise, Oliva testified in his deposition that plaintiff wanted D-cup sized breasts and he,as her surgeon, agreed to meet her request. Both plaintiff and Oliva acknowledge that plaintiff'sbreasts decreased in size after the surgery. This evidence shows some merit in plaintiffs' cause ofaction asserted in the amended complaint, namely that Oliva made express promises to insertsmooth implants and to increase her breasts to a specified size, but did not accomplish thoseresults. As defendants failed to demonstrate actual prejudice due to plaintiffs' delay in movingfor leave to amend the complaint (see id.; Kaufman v Bauer, 36 AD3d 481, 484 [2007]), we find thatSupreme Court abused its discretion in denying the motion for leave to amend (see Cary vFisher, 161 AD2d 1063, 1064 [1990]).
Stein and McCarthy, JJ., concur.
Spain, J. (dissenting). Respectfully, we must dissent as we cannot agree that Supreme Courtabused its discretion in rejecting plaintiffs' motion for leave to amend the complaint to add abreach of contract cause of action.
To sustain the proposed amendment, it was incumbent upon plaintiffs to allege thatdefendant Peter J. Oliva made "an express special promise to effect a cure or to accomplish somedefinite result" (Mitchell v Spataro, 89 AD2d 599 [1982]; see Pagan v Quinn, 51 AD3d1299, 1301 [2008]; Dobisky v Rand, 248 AD2d 903, 905 [1998]), as opposed to aphysician's expression of his or her intention to "undertake only to render his [or her] bestjudgment and skill" in an attempt to produce a patient's desired results (Robins vFinestone, 308 NY 543, 546 [1955]). Oliva's alleged failure to do [*2]the latter is the foundation of plaintiffs' malpractice claim. We findinsufficient evidence of the former to support a breach of contract claim and, accordingly, wewould affirm.
With regard to the dissatisfaction that plaintiff Amy Duquette (hereinafter plaintiff) has withthe size and appearance of her breasts following the procedure, the record is devoid of anyevidence that any precise result was guaranteed that would convert this seemingly viablemalpractice claim into a cause of action for a breach of contract. Oliva's acknowledgment that agoal of the surgery was to make plaintiff a D cup does not amount to a promise to produce thatresult. Likewise, plaintiff's testimony that Oliva "recommended" using a smooth implant, butinstead used a textured implant without plaintiff's consent, is insufficient evidence that anexpress special promise was made to use a smooth implant, regardless of any circumstances thatmight arise during the surgery. Given the dearth of evidence of any express special promise, wecannot ascribe to the conclusion that Supreme Court abused its discretion in concluding that nosustainable basis exists for amending the complaint to include a breach of contract claim (seePagan v Quinn, 51 AD3d at 1300-1301).
Cardona, P.J., concurs. Ordered that the order is reversed, on the law, with costs, and motiongranted.