Ferguson v. Kane

155 A.D.2d 903

Opinion

— Order insofar as appealed from unanimously reversed on the law with costs and plaintiff’s motion granted. Memorandum: Supreme Court erred in denying plaintiff leave to serve an amended complaint containing an additional derivative claim on behalf of the father of the infant plaintiff. Since the original complaint gave notice of the transactions and occurrences to be proved pursuant to the amended pleading, the father’s additional derivative claim is not time barred (see, CPLR 203 [e]; Caffaro v Trayna, 35 NY2d 245; O’Connor v West, 124 AD2d ; Rivera v St. Luke’s Hosp., 102 Misc 2d 727). Moreover, defendants have not established that they would suffer prejudice if the amended derivative claim is permitted (see, Rutz v Kellum, 144 AD2d 1017). (Appeal from order of Supreme Court, Erie County, Ricotta, J. — amend complaint.) Present— Dillon, P. J., Denman, Green, Pine and Balio, JJ.