| Henry v MTA |
| 2013 NY Slip Op 03457 [106 AD3d 874] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Dorothy Henry, Respondent, v MTA et al.,Appellants. |
—[*1] Sullivan, Papain, Block, McGrath & Cannavo, P.C., New York, N.Y. (Stephen C.Glasser and Gabriel A. Arce-Yee of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated June 11, 2012, as granted the plaintiff's motion for leave toamend the complaint to add a cause of action to recover damages for wrongful death.
Ordered that the order is affirmed insofar as appealed from, with costs.
Where a motion for leave to amend a complaint "is made long after the action hasbeen certified for trial, judicial discretion in allowing such amendments should bediscrete, circumspect, prudent, and cautious" (American Cleaners, Inc. v American Intl. Specialty Lines Ins.Co., 68 AD3d 792, 794 [2009] [internal quotation marks omitted]; see Morris v Queens Long Is. Med.Group, P.C., 49 AD3d 827, 828 [2008]; Countrywide Funding Corp. v Reynolds, 41 AD3d 524,525 [2007]). Nevertheless, "[a] determination whether to grant such leave is within theSupreme Court's broad discretion, and the exercise of that discretion will not be lightlydisturbed" (Gitlin vChirinkin, 60 AD3d 901, 902 [2009]; see Aurora Loan Servs., LLC v Dimura, 104 AD3d 796[2013]; Ingrami v Rovner,45 AD3d 806, 808 [2007]).
Here, the Supreme Court did not improvidently exercise its discretion in granting theplaintiff's motion for leave to amend the complaint to add a cause of action to recoverdamages for wrongful death. Although the plaintiff delayed in making the motion, "'[m]ere lateness is not a barrier to the amendment. It must be lateness coupled withsignificant prejudice to the other side' " (Aurora Loan Servs., LLC v Dimura, 104 AD3d 796, 797[2013], quoting Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959[1983]; see U.S. Bank, N.A. vSharif, 89 AD3d 723, 724 [2011]; Public Adm'r of Kings County v Hossain Constr. Corp., 27AD3d 714, 716 [2006]). Contrary to the defendants' contentions, they did notdemonstrate that they would be significantly prejudiced by the amendment. In light of themedical records of the plaintiff's decedent, which documented multiple hospitaladmissions and her declining medical condition following the subject accident, alongwith the decedent's deposition testimony regarding the aggravation of pre-existingmedical conditions, the defendants cannot, under the circumstances of this case, claim tohave been surprised by the amendment (cf. Rodriguez v Panjo, 81 AD3d 805, 806 [2011]).Moreover, the plaintiff offered a [*2]reasonable excusefor the delay, and to avoid any possible prejudice to the defendants, the Supreme Courtgranted them time to obtain further discovery (see Alvarado v Beth Israel Med. Ctr., 78 AD3d 873, 874[2010]; Grande v Peteroy,39 AD3d 590, 592 [2007]).
The parties' remaining contentions are not properly before this Court. Skelos, J.P.,Dickerson, Lott and Roman, JJ., concur.