Opinion
953 CA 20-01165
03-11-2022
Tina M. DEGENFELDER, as Administratrix of the Estate of Dorothy M. Conrow, Deceased, Plaintiff-Respondent, v. WILLIAMSVILLE SUBURBAN, LLC, Golden Living Centers, LLC, Kaleida Health, Doing Business as Millard Fillmore Suburban Hospital, and Kaleida Health, Defendants-Appellants.
CAITLIN ROBIN & ASSOCIATES PLLC, BUFFALO (MARK A. LAUGHLIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS WILLIAMSVILLE SUBURBAN, LLC AND GOLDEN LIVING CENTERS, LLC. GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AMANDA C. ROSSI OF COUNSEL), FOR DEFENDANTS-APPELLANTS KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE SUBURBAN HOSPITAL AND KALEIDA HEALTH. BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
CAITLIN ROBIN & ASSOCIATES PLLC, BUFFALO (MARK A. LAUGHLIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS WILLIAMSVILLE SUBURBAN, LLC AND GOLDEN LIVING CENTERS, LLC.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AMANDA C. ROSSI OF COUNSEL), FOR DEFENDANTS-APPELLANTS KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE SUBURBAN HOSPITAL AND KALEIDA HEALTH.
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
Now, upon reading and filing the stipulation of discontinuance with respect to defendants Kaleida Health, doing business as Millard Fillmore Suburban Hospital, and Kaleida Health, signed by the attorneys for the parties on February 2 and 7, 2022,
It is hereby ORDERED that the appeal by defendants Kaleida Health, doing business as Millard Fillmore Suburban Hospital, and Kaleida Health is dismissed upon stipulation, and the order is affirmed without costs.
Memorandum: Plaintiff, in her capacity as power of attorney for Dorothy M. Conrow (decedent), commenced this personal injury action in 2015 to recover damages for injuries sustained by decedent. Decedent passed away approximately three weeks after the complaint was filed. In 2016, plaintiff was appointed administratrix of decedent's estate and was substituted as the named plaintiff in that capacity. In June 2020, plaintiff moved for leave to amend the complaint to add a claim for wrongful death. Supreme Court, inter alia, granted plaintiff's motion, and Williamsville Suburban, LLC and Golden Living Centers, LLC (defendants) appeal.
The decision whether to grant leave to amend a pleading rests within the sound discretion of the trial court and "will not be disturbed absent a clear abuse of that discretion" ( Raymond v. Ryken , 98 A.D.3d 1265, 1266, 951 N.Y.S.2d 776 [4th Dept. 2012] ; see Taylor v. Deubell , 153 A.D.3d 1662, 1662, 60 N.Y.S.3d 739 [4th Dept. 2017] ), and we conclude that the court did not abuse its discretion here. The wrongful death cause of action "arose out of the same occurrence[s] set forth in the original pleadings" ( Taylor , 153 A.D.3d at 1662, 60 N.Y.S.3d 739 ; see CPLR 203 [f] ; Caffaro v. Trayna , 35 N.Y.2d 245, 250-251, 360 N.Y.S.2d 847, 319 N.E.2d 174 [1974] ), and defendants failed to demonstrate that they would be unduly prejudiced if the motion were granted (see Caffaro , 35 N.Y.2d at 250-251, 360 N.Y.S.2d 847, 319 N.E.2d 174 ; Wojtalewski v. Central Sq. Cent. Sch. Dist. , 161 A.D.3d 1560, 1561, 77 N.Y.S.3d 255 [4th Dept. 2018] ). Finally, defendants failed to demonstrate that the proposed amendment was palpably insufficient or patently devoid of merit (see Holst v. Liberatore , 105 A.D.3d 1374, 1374, 964 N.Y.S.2d 333 [4th Dept. 2013] ).
All concur except Carni, J., who is not participating.