| Carroll v Motola |
| 2013 NY Slip Op 05728 [109 AD3d 629] |
| August 28, 2013 |
| Appellate Division, Second Department |
| Ann Marie Carroll, as Executor of James Dalton, Deceased,Respondent, v Jay Motola, M.D., et al., Respondents-Appellants, and DanielLehman, M.D., Appellant-Respondent, et al., Defendants. |
—[*1] Peltz & Walker, New York, N.Y. (Bhalinder L. Rikhye of counsel), forrespondents-appellants. De Caro & De Caro, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y.[Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.
In a consolidated action, inter alia, to recover damages for medical malpractice, thedefendant Daniel Lehman appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Westchester County (Loehr, J.), entered January 30, 2012, as deniedhis motion for leave to amend his answer to assert the statute of limitations as a defenseto the cause of action alleging wrongful death, and the defendants Jay Motola and Jay A.Motola, M.D., P.C., cross-appeal, as limited by their brief, from stated portions of thesame order. By order to show cause dated July 10, 2012, the parties or their attorneyswere directed to show cause before this Court why an order should or should not bemade and entered dismissing the cross appeal of Jay Motola and Jay A. Motola, M.D.,P.C., on the ground that they are not aggrieved by the order entered January 30, 2012. Bydecision and order on motion of this Court dated August 30, 2012, the motion was heldin abeyance and referred to the panel of Justices hearing the appeal for determinationupon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon theargument of the appeal, it is
Ordered that the motion to dismiss the cross appeal of Jay Motola and Jay A. Motola,M.D., P.C., on the ground that they are not aggrieved by the order entered January 30,2012, is granted (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant DanielLehman, on the law and in the exercise of discretion, and the motion of the defendantDaniel Lehman for leave to amend his answer to assert the statute of limitations as adefense to the cause of action alleging wrongful death is granted; and it is further,[*2]
Ordered that one bill of costs is awarded to thedefendant Daniel Lehman, payable by the plaintiff.
In August 2008, the plaintiff, as executor of the estate of James Dalton (hereinafterthe decedent), commenced an action against Jay Motola, individually, and NorthernWestchester Hospital Center (hereinafter the Hospital), alleging that Motola and theHospital negligently performed prostate surgery on the decedent, and that theirnegligence caused the decedent serious injury resulting in his death. In January 2010, theplaintiff, as executor of the decedent's estate, commenced a second action against, amongothers, Jay A. Motola, M.D., P.C., and Daniel Lehman, alleging that they negligentlyperformed prostate surgery on the decedent, and that their negligence caused him seriousinjury resulting in the decedent's death. Subsequently, the two actions were consolidated.In October 2011, Lehman moved for leave to amend his answer to assert the statute oflimitations as a defense to the cause of action alleging wrongful death.
The Supreme Court improvidently exercised its discretion in denying Lehman'smotion. In the absence of prejudice or surprise to the opposing party, leave to amend ananswer to assert an affirmative defense should be freely given where the proposedamendment is neither palpably insufficient nor patently devoid of merit (seeCPLR 3025 [b]; Tomasino vAmerican Tobacco Co., 57 AD3d 652, 653 [2008]; Matter of Roberts v Borg, 35AD3d 617, 618 [2006]). "The legal sufficiency or merits of a proposed amendmentto a pleading will not be examined unless the insufficiency or lack of merit is clear andfree from doubt" (Sample vLevada, 8 AD3d 465, 467-468 [2004]; see Maldonado v Newport Gardens, Inc., 91 AD3d 731,732 [2012]; Vista Props., LLC vRockland Ear, Nose & Throat Assoc., P.C., 60 AD3d 846, 847 [2009]).
Here, it is undisputed that the two-year statute of limitations applicable to a cause ofaction alleging wrongful death began to run on August 14, 2007, the date of thedecedent's death (see EPTL 5-4.1), and that the plaintiff commenced the secondaction, in which Lehman was a named defendant, more than two years after thedecedent's death. Accordingly, Lehman's proposed affirmative defense of the statute oflimitations as to so much of the complaint as sought to recover damages for wrongfuldeath was not palpably insufficient nor patently devoid of merit on its face, and theplaintiff's contentions regarding the relation back doctrine (see CPLR 203 [b])did not warrant the denial of Lehman's motion. Consequently, as there was no evidencethat the amendment would unfairly prejudice the plaintiff, the Supreme Court shouldhave granted Lehman's motion for leave to amend his answer without conducting afurther examination into the ultimate merits of the proposed amendment (seeMaldonado v Newport Gardens, Inc., 91 AD3d at 732; Vista Props., LLC vRockland Ear, Nose & Throat Assoc., P.C., 60 AD3d at 847; Lucido v Mancuso, 49 AD3d220, 229 [2008]). "If [the plaintiff] wishes to test the merits of the proposed added. . . defense, [the plaintiff] may later move for summary judgment upon aproper showing" (Lucido v Mancuso, 49 AD3d at 229). Skelos, J.P., Dickerson,Lott and Roman, JJ., concur.