Opinion
524918
11-30-2017
Deborah BYNUM, Individually and as Administrator of the Estate of Heather Bynum, Deceased, Respondent, v. CAMP BISCO, LLC, et al., Appellants.
Roemer, Wallens, Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants. LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for respondent.
Roemer, Wallens, Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.
LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for respondent.
Before: Peters, P.J., Garry, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J. Appeal from an order of the Supreme Court (Versaci, J.), entered April 10, 2017 in Schenectady County, which, among other things, granted plaintiff's motion to amend the complaint.
Plaintiff's daughter, Heather Bynum (hereinafter decedent), sustained serious permanent injuries in 2012 after reportedly ingesting a harmful substance while attending a music festival known as Camp Bisco. As a result, decedent entered a nonresponsive state from which she never recovered, and she died in 2016. Plaintiff, individually and as decedent's guardian, commenced actions in 2013, later consolidated, against defendants alleging, as relevant here, that defendants had breached their common-law duty to exercise reasonable care to, among other things, curtail the use of illegal drugs on the festival grounds, and negligence, based upon the failure to provide adequate onsite emergency medical services. This matter has previously been before this Court ( 151 A.D.3d 1427, 58 N.Y.S.3d 673 [2017] ; 135 A.D.3d 1066, 23 N.Y.S.3d 654 [2016] ; 135 A.D.3d 1060, 22 N.Y.S.3d 677 [2016] ). Following decedent's death, plaintiff moved for, among other relief, leave to amend the complaint to add a cause of action for wrongful death, which defendants opposed. After a brief oral argument, Supreme Court issued an order that amended the caption, substituted plaintiff, individually and as administrator of decedent's estate, as the plaintiff in this action, and granted the motion to amend. Defendants now appeal.
On prior appeals, the municipal defendants were granted summary judgment dismissing the complaint against them (135 A.D.3d at 1063, 22 N.Y.S.3d 677 ), the complaint was dismissed as against the co-owners of defendant MCP Presents, LLC and the fraudulent misrepresentation claim was dismissed (135 A.D.3d at 1068, 23 N.Y.S.3d 654 ). Defendants were recently directed to comply with plaintiff's discovery request for festival ticket sale records (151 A.D.3d at 1428–1429, 58 N.Y.S.3d 673 ).
We note that a written decision by Supreme Court would have assisted this Court in understanding the rationale for its determination.
We affirm. Pursuant to CPLR 3025(b), a party may amend its pleadings "at any time by leave of [the] court," which "shall be freely given upon such terms as may be just" (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014] ). To that end, "[t]he decision whether to grant leave to amend pleadings rests within the trial court's sound discretion and[,] absent a clear abuse of that discretion, will not be lightly cast aside" ( Cowsert v. Macy's E., Inc., 74 A.D.3d 1444, 1444–1445, 904 N.Y.S.2d 239 [2010] [internal quotation marks and citations omitted]; see Matter of Wechsler v. New York State Adirondack Park Agency, 85 A.D.3d 1378, 1380, 925 N.Y.S.2d 247 [2011] ). As recently clarified by this Court, on a motion for leave to amend a pleading, the movant need not establish the merits of the proposed amendment and, " ‘in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " ( NYAHSA Servs., Inc. v. People Care Inc., 156 A.D.3d 99, 102, 64 N.Y.S.3d 730, 2017 N.Y. Slip Op. 07918, *2 [2017] [brackets omitted], quoting Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 [2008] ; see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; LaLima v. Consolidated Edison Co. of N.Y., Inc., 151 A.D.3d 832, 834, 58 N.Y.S.3d 66 [2017] ; Cruz v. Brown, 129 A.D.3d 455, 456, 11 N.Y.S.3d 33 [2015] ; Holst v. Liberatore, 105 A.D.3d 1374, 1374–1375, 964 N.Y.S.2d 333 [2013] ). The party opposing the amendment bears the burden of demonstrating prejudice (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; Redd v. Village of Freeport, 150 A.D.3d 780, 781, 53 N.Y.S.3d 692 [2017] ).
Supreme Court providently exercised its discretion in granting plaintiff's motion to amend the complaint to add a cause of action for wrongful death following the death of decedent. In support of her motion, plaintiff submitted an affirmation alleging that decedent died as a result of injuries suffered due to defendants' negligence, which defendants opposed by challenging the adequacy of proof of causation. In reply, plaintiff submitted decedent's death certificate, which lists as the primary cause of death acute respiratory failure due to sepsis and anoxic brain injury that occurred years earlier. Secondarily, it indicated that decedent had a seizure disorder that contributed to her death, but was not related to the primary cause of death. Decedent's dire condition and prognosis were known from the outset, discovery has been ongoing, the proposed amendment does not change the theory of recovery and, given its nature, obviously could not have been added prior to decedent's death (see Kimso Apts. LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ). In this procedural context, "[p]rejudice is more than the mere exposure of the [party] to greater liability," as "there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position" ( id. [internal quotation marks and citations omitted]; see Redd v. Village of Freeport, 150 A.D.3d at 781, 53 N.Y.S.3d 692 ).
As Supreme Court correctly found, defendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment (see Redd v. Village of Freeport, 150 A.D.3d at 781, 53 N.Y.S.3d 692 ; see also Noble v. Slavin, 150 A.D.3d 1345, 1346, 54 N.Y.S.3d 200 [2017] ; Lakshmi Grocery & Gas, Inc. v. GRJH, Inc., 138 A.D.3d 1290, 1292, 30 N.Y.S.3d 743 [2016] ). Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent's injuries were caused by defendants' failure to ensure that she received adequate and timely emergency medical care ( 135 A.D.3d at 1067, 23 N.Y.S.3d 654 ). Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence (see Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 668, 569 N.Y.S.2d 915, 572 N.E.2d 598 [1991] ), is "palpably insufficient or patently devoid of merit" ( NYAHSA Servs., Inc. v. People Care Inc., 64 N.Y.S.3d at 733,2017 N.Y. Slip Op. 07918 at *2 [internal quotation marks and citation omitted] ). To the extent that defendants argue that the motion for leave to amend to add a cause of action for wrongful death must be supported by competent medical proof showing a causal connection between their alleged negligence and decedent's death, they are incorrect. Prior decisions have held that, "[w]here a plaintiff seeks to amend a complaint alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by ‘competent medical proof showing a causal connection between the alleged negligence and the decedent's death’ " ( Smith v. Haggerty, 16 A.D.3d 967, 968, 792 N.Y.S.2d 217 [2005] [emphasis added], quoting Ludwig v. Horton Mem. Hosp., 189 A.D.2d 986, 986–987, 592 N.Y.S.2d 842 [1993] ; see Imperati v. Lee, 132 A.D.3d 591, 592, 18 N.Y.S.3d 615 [2015] ). Given that plaintiff's wrongful death claim here is based upon negligence, that standard is inapplicable.
Defendants' papers in opposition to the motion to amend alluded to the need, in a wrongful death action, to show that one or more distributees had a reasonable expectation of support from the decedent and, thus, suffered pecuniary loss (see McKenna v. Reale, 137 A.D.3d 1533, 1535–1536, 29 N.Y.S.3d 596 [2016] ; EPTL 5–4.1[1] ; 5–4.3[a] ). Defendants did not clearly oppose the motion to amend based upon the failure to name the distributees or to request funeral expenses in the proposed amended complaint. Supreme Court's oral ruling appeared to recognize that this would ultimately be in issue, but did not expressly or clearly rule on it. In any event, defendants did not raise this claim in their brief to this Court and, accordingly, that challenge is deemed abandoned for purposes of this appeal (see Gallagher v. Cayuga Med. Ctr., 151 A.D.3d 1349, 1351 n. 1, 57 N.Y.S.3d 544 [2017] ), although nothing in this decision precludes it from being raised as a challenge to the amended complaint in the trial court.
ORDERED that the order is affirmed, with costs.
Peters, P.J., Garry, Aarons and Pritzker, JJ., concur.