| Botros v Flamm |
| 2010 NY Slip Op 07131 [77 AD3d 602] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Suzan Botros, as Administrator of the Estate of Basem R. Botros,Deceased, et al., Respondents, v Eugene Flamm, M.D., et al.,Appellants. |
—[*1] Coville & Genovese, P.C., Merrick, N.Y. (John D. Coville and Mitchell Dranow of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from anorder of the Supreme Court, Suffolk County (Molia, J.), dated October 21, 2009, which granted theplaintiffs' motion for leave to amend the complaint to add a cause of action to recover damages forwrongful death and to amend the caption, and denied, as premature, with leave to renew upon thecompletion of disclosure, the defendants' cross motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in granting that branch of theplaintiffs' motion which was pursuant to CPLR 3025 (b) for leave to amend the complaint to add acause of action to recover damages for wrongful death, as the proposed amendment would not causeprejudice or surprise and was neither palpably insufficient nor patently devoid of merit (seeCPLR 3025 [b]; Lucido v Mancuso,49 AD3d 220, 229 [2008]; Hines v Cityof New York, 43 AD3d 869, 871 [2007]). As a result, that branch of the plaintiffs' motionwhich was for leave to amend the caption also was properly granted. The defendants' remainingcontention regarding the amendment of the complaint is not properly before this Court.
CPLR 3212 (f) permits a party opposing a motion for summary judgment to obtain furtherdiscovery when it appears that facts supporting the position of the opposing party exist but cannot bestated (see Family-Friendly Media, Inc. vRecorder Tel. Network, 74 AD3d 738 [2010]; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578[2009]; Juseinoski v New York Hosp. Med.Ctr. of Queens, 29 AD3d 636, 637 [2006]). Under the circumstances, the Supreme Courtproperly denied, as premature, with leave to renew upon the completion of disclosure, the defendants'cross motion for summary judgment dismissing the complaint. Rivera, J.P., Dickerson, Eng and Austin,JJ., concur.