Opinion
6496N Index 150538/14
05-08-2018
Anastasia FRANGIADAKIS, as Administratrix of the ESTATE OF Constantine BAZAS, Deceased, et al., Plaintiffs–Respondents, v. 51 WEST 81ST STREET CORP., et al., Defendants–Appellants, Midboro Management Inc., et al., Defendants. [And Third–Party Actions]
Mauro Lilling Naparty, LLP, Woodbury (Matthew W. Naparty of counsel), for appellants. Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for respondents.
Mauro Lilling Naparty, LLP, Woodbury (Matthew W. Naparty of counsel), for appellants.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for respondents.
Sweeny, J.P. Renwick, Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered August 29, 2017, which granted plaintiffs' motion to amend the complaint to add a cause of action for wrongful death, unanimously affirmed, without costs.
The motion court properly granted plaintiffs' motion to amend the complaint to include a cause of action for wrongful death. CPLR 3025(b) governs permissive leave to amend a pleading, and it states that leave "shall be freely given upon such terms as may be just including the granting of costs and continuances." Further, as we have stated, to support amending a personal injury complaint to add a cause of action for wrongful death, plaintiffs were required to submit "competent medical proof of the causal connection between the alleged malpractice and the death of the original plaintiff" ( Gambles v. Davis, 32 A.D.3d 224, 225, 820 N.Y.S.2d 18 [1st Dept. 2006] ). The affirmation of plaintiffs' expert, which stated that to a reasonable degree of medical certainty the decedent's injury led to his death, was sufficient, for the purposes of CPLR 3025(b), to establish a causal connection between the decedent's death and the originally alleged negligence by defendants (see Pier 59 Studios, L.P. v. Chelsea Piers, L.P., 40 A.D.3d 363, 366, 836 N.Y.S.2d 68 [1st Dept. 2007] ; see also Matter of Tobin v. Steisel, 64 N.Y.2d 254, 259, 485 N.Y.S.2d 730, 475 N.E.2d 101 [1985] ). Plaintiff's submission of the expert's affirmation on reply is not fatal to the motion, because defendant was permitted to submit a surreply.
We have considered and rejected defendants' remaining arguments.