| Hothan v Mercy Med. Ctr. |
| 2013 NY Slip Op 02541 [105 AD3d 905] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Colleen Ann Hothan, as Temporary Administratrix of theEstate of Philomina Kelly, Deceased, Appellant, v Mercy Medical Center,Respondent, et al., Defendant. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County(Sher, J.), dated August 22, 2011, as denied that branch of her motion which was forleave to amend the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and that branch of the plaintiff's motion which was for leave to amendthe complaint is granted.
Following the death of the plaintiff's decedent, Philomina Kelly (hereinafter thedecedent), the plaintiff, as temporary administrator of the decedent's estate, commenced amedical malpractice action against the defendants. On the eve of trial, the plaintiffcross-moved for leave to serve an amended complaint to add a cause of action allegingwrongful death. The Supreme Court denied the plaintiff's cross motion and, thereafter,the plaintiff was granted a mistrial. Prior to the second trial, the plaintiff moved, interalia, for leave to amend the complaint to add a cause of action for wrongful death againstthe defendant Mercy Medical Center (hereinafter Mercy). The Supreme Court denied thatbranch of the motion which was for leave to amend the complaint on the ground that thecourt's prior determination was the law of the case and, thus, it was precluded fromreexamining the issue.
The doctrine of the law of the case does not bind appellate courts, and thus, thisCourt is not bound by the law of the case established by the prior determination (see Clark v Great Atl. & Pac. TeaCo., Inc., 23 AD3d 510, 511 [2005]; Latture v Smith, 304 AD2d 534,535 [2003]; Keith v Schulman, 265 AD2d 380 [1999]; Fabbricatore vLindenhurst Union Free School Dist., 259 AD2d 659, 660 [1999]). Accordingly, thisCourt is free to consider that branch of the plaintiff's motion which was for leave toamend the complaint on the merits (see Padela v Rosen & Weidberg, 200 AD2d722, 723 [1994]; Detko v McDonald's Rests. of N.Y., 198 AD2d 208, 209[1993]; Hoffman v Landers, 146 AD2d 744, 746 [1989]). Under thecircumstances presented here, we conclude that leave to amend the pleading should bepermitted.
Generally, leave to amend a pleading should be freely given when there is no [*2]significant prejudice or surprise to the opposing party andwhere the evidence submitted in support of the motion indicates that the proposedamendment may have merit (see CPLR 3025 [b]; Edenwald Contr. Co. v Cityof New York, 60 NY2d 957, 959 [1983]; Pike v New York Life Ins. Co., 72 AD3d 1043, 1047[2010]). Here, in the aftermath of the court's granting of a mistrial, Mercy failed toallege, much less show, surprise or prejudice resulting from the plaintiff's delay inasserting the wrongful death cause of action against it (see Edenwald Contr. Co. vCity of New York, 60 NY2d at 959; Pike v New York Life Ins. Co., 72AD3d at 1047). Moreover, the proposed amended complaint, which sufficiently allegedthat Mercy's negligence caused the decedent to suffer injuries and ultimately death, wasneither "palpably insufficient nor patently devoid of merit" (Kahan v Spira, 88 AD3d964, 965 [2011]; seeLucido v Mancuso, 49 AD3d 220, 232 [2008]).
Mercy's contention that the proposed amendment violated the two-year statute oflimitations applicable to wrongful death causes of action (see EPTL 5-4.1) isimproperly raised for the first time on appeal (see Wnetrzak v V.C. Vitanza Sons, Inc., 79 AD3d 939, 940[2010]; Matter of Troy Sand & Gravel Co. v New York State Dept. of Transp.,277 AD2d 782, 783 [2000]). Balkin, J.P., Leventhal, Roman and Hinds-Radix, JJ.,concur. [Prior Case History: 2011 NY Slip Op 32295(U).]