Botros v. Flamm

77 A.D.3d 602, 908 N.Y.S.2d 358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2010
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated October 21, 2009, which granted the plaintiffs’ motion for leave to amend the complaint to add a cause of action to recover damages for wrongful death and to amend the caption, and denied, as premature, with leave to renew upon the completion 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 the plaintiffs’ motion which was pursuant to CPLR 3025 (b) for leave to amend the complaint to add a cause of action to recover damages for wrongful death, as the proposed amendment would not cause prejudice or surprise and was neither palpably insufficient nor patently devoid of merit (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 229 [2008]; Hines v City of New York, 43 AD3d 869, 871 [2007]). As a result, that branch of the plaintiffs’ motion which was for leave to amend the caption also was properly granted. The defendants’ remaining contention 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 further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (see Family-Friendly Media, Inc. v Recorder 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 Court properly 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.