Kennedy v. Calta

70 A.D.2d 930, 417 N.Y.S.2d 750, 1979 N.Y. App. Div. LEXIS 12531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1979
• Status: Published

Opinion

— In a malpractice action, the parties cross-appeal from an order of the Supreme Court, Richmond County, dated May 25, 1978, which (1) granted that branch of the motion by defendant Calta which was for leave to serve an amended answer, and (2) denied that branch of said motion which was for summary judgment. Order modified by deleting therefrom the first, third and fourth decretal paragraphs thereof and substituting therefor a provision denying that branch of defendant Calta’s motion which was for leave to serve an amended answer. As so modified, order affirmed, with $50 costs and disbursements to plaintiffs. Defendant Calta’s answer admitted that he was the physician who performed the questioned surgery. Plaintiff Catherine Kennedy had no reason to believe otherwise since Dr. Calta was the surgeon to whom she had been referred by her family physician and she was under anesthesia during the surgery. More than three years after service of his answer Calta moved, inter alia, to amend it to allege that he had not performed the surgery. Because of statutory time limitations the granting of this branch of the motion would leave the plaintiffs remediless as to the surgeon mentioned by Calta. Under such circumstances the prejudice to plaintiffs is so manifest that Calta’s application to amend his answer should have been denied (see Sarullo v Newsstand Realty Corp., 2 AD2d 854; Nathan v Long Is. Light. Co., 5 AD2d 676; Lentini v St. Vincent’s Hosp. of Borough of Richmond, 19 AD2d 652; De Fabio v Nadler Rental Serv., 27 AD2d 931). Mollen, P. J., Hopkins, Titone, O’Connor and Shapiro, JJ., concur.