Opinion
Submitted September 11, 2000
October 2, 2000.
In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Suffolk County (Catterson, J.), dated September 24, 1999, which denied his motion for leave to serve an amended answer raising an affirmative defense that the plaintiff lacked capacity to commence this action, and for summary judgment dismissing the action due to the plaintiff's lack of capacity.
Vardaro Helwig, Smithtown, N.Y. (Marc A. Gersten of counsel), for appellant.
Before: GUY JAMES MANGANO, P.J., SONDRA MILLER, WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
Although leave to serve an amended pleading should be liberally granted, leave should be denied, as a matter of law, where the proposed amendment is "patently lacking in merit" (Staines v. Nassau Queens Med. Group, 176 A.D.2d 718; see, Bonnen v. Chiang, A.D.2d [2d Dept., May 8, 2000]; Perrini v. City of New York, 262 A.D.2d 541). Contrary to the defendant's contention, as a litigant in a proceeding under chapter 13 of the United States Bankruptcy Code (11 U.S.C. ch 13), the plaintiff possessed the requisite capacity to maintain this medical malpractice action (see, Olick v. Parker Parsley Petroleum Co., 145 F.3d 513; accord, Matter of Danwood Properties/78 v. Thorson, 209 F.3d 114; Cable v. Ivy Tech. State Coll., 200 F.3d 467; Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209; Murray v. Board of Educ. of City of New York, 248 B.R. 484; Matter of Bowker, 245 B.R. 192; Matter of Griner, 240 B.R. 432; Donato v. Metropolitan Life Ins. Co., 230 B.R. 418; see also, Matter of Southern Housing v. Moore, 2000 WL 432433 [Ala., April 21, 2000]; Dance v. Louisiana State Univ. Med. Cent. at Shreveport, 749 So.2d 870; cf., Goldstein v. St. John's Hosp., 267 A.D.2d 426; Pinto v. Ancona, 262 A.D.2d 472). Accordingly, the defendant's motion for leave to serve an amended answer interposing the affirmative defense of lack of capacity, and for summary judgment thereon, was properly denied.