Trevithick v. Abbott Laboratories

72 A.D.2d 840, 421 N.Y.S.2d 706, 1979 N.Y. App. Div. LEXIS 14127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1979
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Special Term, entered September 25, 1978 in Schenectady County, which denied plaintiffs’ motion for leave to serve an amended complaint. Plaintiff contends he sustained injury from improper diagnosis and treatment with an unfit drug manufactured by Abbott Laboratories (Abbott) while he was a patient at Ellis Hospital on or about February 6, 1971. A summons was served on January 24, 1974 and the complaint followed on May 25, 1975. It alleged a cause of action in negligence against the hospital and asserted a breach of express and implied warranties against Abbott. All pleadings and pretrial proceedings were completed by December 16, 1977, and defendant Abbott served a 45-day notice pursuant to CPLR 3216 on May 8, 1978. Plaintiff responded with a notice of motion seeking leave to serve an amended complaint in order to add causes of action against Abbott in strict products liability and negligence on a theory of res ipsa loquitur, and asked for permission to interpose causes of action in breach of warranty and strict products liability against Ellis Hospital. Special Term, in the exercise of its discretion, denied the motion as prejudicial to the rights of the defendants in both "timing and scope.” We agree. While the applicable statute provides that permission to amend pleadings is to be freely given (CPLR 3025, subd [b]) and such amendments are usually allowed absent laches, surprise or undue prejudice (De Forte v Allstate Ins. Co., 66 AD2d 1028), the ultimate decision is a matter within the trial court’s discretion (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025, C3025.4, p 476). In upholding the exercise thereof, we conclude that the present attempt to add new and different theories, of recovery, over seven years after the incident in question, was properly rejected upon the grounds of laches and undue prejudice, particularly when, as here, plaintiff possessed knowledge of the underlying facts at the time of his original pleading (see Jochnowitz v Sheehan, 42 AD2d 707). Plaintiff maintains that the proposed strict products liability cause of action against Abbott works neither prejudice nor surprise since it was placed on notice of such a claim by the original breach of warranty assertions and, therefore, that the proposed amendment should stand (ef. Jerry v Borden Co., 45 AD2d 344). However, a cause of action in strict products liability does generate a new theory of recovery and would place an additional burden upon the defendant seven years after the event which is alleged to have caused the injury. Such a cause of action sounds in tort, not contract (Victorson v Bock Laundry Mach. Co., 37 NY2d 395), and defendant Abbott can legitimately claim surprise, laches and prejudice. Moreover, as to the defendant Ellis Hospital, there can be no question but that causes of action for breach of warranty and strict products liability are not available (Perlmutter v Beth David Hosp., 308 NY 100; Osborn v Kelley, 61 AD2d 367). Order affirmed, with costs. Sweeney, Kane and Staley, Jr., JJ., concur.