Kirchmeyer v. S. Subramanian

167 A.D.2d 851, 561 N.Y.S.2d 957, 1990 N.Y. App. Div. LEXIS 14395

Opinions

Order reversed on the law without costs and motion granted. Memorandum: We find that, under the circumstances of this case, the affidavit of decedent’s physician, proffered in support of the motion, constituted the presentation of additional facts which sufficed to make plaintiff’s motion a motion to renew (see, Roberts v Narcissus Boutique, 72 AD2d 808). Therefore, this appeal is properly before us since an appeal lies from the denial of a motion to renew (see, Seabrook Realty Corp. v 139 W. Mut. Assocs., 60 AD2d 821).

Supreme Court’s denial of plaintiff’s renewal motion for leave to amend the complaint to assert a cause of action for wrongful death constituted an improvident exercise of its discretion. Contrary to defendants’ argument, the physician’s affidavit of merit submitted by plaintiff adequately demonstrated a causal connection between defendants’ alleged malpractice and decedent’s death (see, Buono v Victory Mem. Hosp., 151 AD2d 633; Ullrich v Rocking Horse Ranch, 138 AD2d 372).

All concur, except Denman and Boomer, JJ., who dissent and vote to affirm, in the following memorandum.