Buono v. Victory Memorial Hospital

151 A.D.2d 633, 543 N.Y.S.2d 93, 1989 N.Y. App. Div. LEXIS 8191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries based upon medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Monteleone, J.), dated February 23, 1987, which upon reargument of so much of a prior order dated December 11, 1986, as denied the plaintiffs’ cross motion for leave to serve an amended complaint alleging a cause of action for wrongful death, granted the cross motion.

Ordered that the order is affirmed, with one bill of costs.

We find that the Supreme Court did not improvidently exercise its discretion in granting the plaintiffs’ motion for reargument to correct a misapprehension of law as to the Statute of Limitations and then, upon reargument, granting leave to amend the complaint to add a cause of action to recover damages for wrongful death. The physician’s affidavit of merit sufficiently set forth a causal connection between the - alleged malpractice and the decedent’s death (see, Ullrich v Rocking Horse Ranch, 138 AD2d 372; Vialva v City of New York, 118 AD2d 701). Thompson, J. P., Kunzeman, Eiber and Balletta, JJ., concur.