Pinchback v. City of New York

51 A.D.2d 733, 379 N.Y.S.2d 124, 1976 N.Y. App. Div. LEXIS 11231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1976
• Status: Published

Opinion

In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Kings County, dated September 19, 1975, which denied her motion for leave to serve an amended complaint. Order affirmed, with $50 costs and disbursements. An amendment of a complaint to allege a new cause of action may be allowed, even where it would be time-barred standing alone, if the new cause relates back to the facts, circumstances and proof underlying the original complaint (see Caffaro v Trayna, 35 NY2d 245 [where an amendment to allege a cause of action for wrongful death, a claim otherwise time-barred, was permitted in a timely commenced action for conscious pain and suffering relating to the same acts of malpractice]). The instant proposed amendment, to claim negligent sidewalk maintenance by the defendant City of New York, in no legal sense relates back to the facts underlying the original complaint’s cause of action for malpractice. Gulotta, P. J., Latham, Hargett, Damiani and Christ, JJ., concur.