However, § 208(a) and Hernandez have been held to be limited to a wrongful death action pursuant to N.Y.E.P.T.L. § 5-4.1[1] (wrongful death action to be commenced within two years of decedent's death). See Machado v. Gulf Oil, L.P., 146 N.Y.S.3d 66, 72 (1st Dept. 2021) (N.Y. Court of Appeals has “declined to extend the C.P.L.R. 208 toll for a wrongful death claim to a cause of action for personal injury because of the distinction between the two causes of action.”) (citing Heslin v. County of Greene, 923 N.E.2d 1111, 1115-17 (N.Y. 2021) (“Heslin”).

As set forth above, since plaintiff has withdrawn his motion to the extent that it sought to join his wife as a plaintiff, and the new claim for lost consortium in the proposed amended complaint was solely on her behalf, the court considers that proposed claim withdrawn, leaving the addition of the other,two new claims and the proposed joinder of new defendants to be determined. Permission to amend the complaint to add new claims and to allege the current claims against new defendants is freely granted unless the amendment would surprise or otherwise prejudice the opposing parties, Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 (2015); Kimso Apts.. LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014); Machado v. Gulf Oil. L.P., 195 A.D.3d 26, 30 (1st Dep't 2021); Mashinskv v. Drescher, 188 A.D.3d 465, 466 (1st Dep't 2020), or the amendment lacks merit. C.P.L.R.

Under the wrongful death statute, a decedent's personal representative maintains the action for the benefit of the distributees of the estate and "personal representative" is defined as "a person who has received letters to administer the estate of a decedent" ( EPTL 1—2.13, 5-4.1, 5-4.4 ; Id. ; seeHeslin v. County of Greene , 14 N.Y.3d 67, 896 N.Y.S.2d 723, 923 N.E.2d 1111 [2010] ). Hence, by express language of the EPTL statute, wrongful death claims are claims that survive the demise of decedent but seek damages that belong to the estate and must be asserted by the personal representative appointed to administer it ( Machado v. Gulf Oil, L.P., 195 A.D.3d 26, 146 N.Y.S.3d 66 [1st Dept. 2021] ; Shelley v. South Shore Healthcare , 123 A.D.3d 797, 999 N.Y.S.2d 103 [2d Dept. 2014] ; Gulledge v. Jefferson County, 172 A.D.3d 1666, 101 N.Y.S.3d 493 [3d Dept. 2019] ; seeHeslin v. County of Greene , supra ; see EPTL 1—2.13, 11—3.2[b] ). Letters of administration, the document necessary to be deemed a personal representative of the decedent's estate, are granted by the Surrogate's Court.

Mere delay does not constitute prejudice sufficient to defeat a motion to amend (Kocourek v Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 [1st Dept 2011]; see also 176 W. 87th St. Owners Corp, v Guercio, 216 A.D.3d 401, 402 [1st Dept 2023]; Machado v Gulf Oil, L.P., 195 A.D.3d 26, 30 [1st Dept 2021] [prejudice is not assumed just because the amendment occurs late in the proceeding]). In determining if the delay was excessive, the court will consider "how long the amending party was aware of the facts upon which the motion was predicated, and whether it offers a reasonable excuse for its lengthy delay" (F.G.L. Knitting Mills v 1087 Flushing Prop., 191 A.D.2d 533, 534 [2d Dept 1993] quoting Pellegrino v New York City Tr. Auth., 177 A.D.2d 554, 557 [2d Dept 1991]).

Leave to amend pleadings under CPLR 3025(b) "should be freely given, and denied only if there is prejudice or surprise resulting directly from the delay." (McGheevOdell, 96 A.D.3d 449, 450 [1st Dept 2012]; see Machado v Gulf Oil, L.P., 195 A.D.3d 26, 30 [1st Dept 2021].) However, "mere lateness is not a barrier to the amendment [as it] must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine."

C.P.L.R. § 3025(b). Leave to amend a complaint is freely granted unless the amendment would surprise or otherwise prejudice the opposing parties, Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 (2015); Kimso Apts., LLC v. Gandhi. 24 N.Y.3d 403, 411 (2014); Machado v. Gulf Oil. L.P., 195 A.D.3d 26, 30 (1st Dep't 2021); Mashinskv v. Drescher. 188 A.D.3d 465, 466 (1st Dep't 2020), or the amendment lacks merit. C.P.L.R. § 3025(b); Mashinsky v. Drescher, 188 A.D.3d at 466; Avail 1 LLC v. Acquafredda Enters. LLC, 184 A.D.3d 476, 477 (1st Dep't 2020); Brook v. Peconic Bay Med. Ctr., 172 A.D.3d 468, 469 (1st Dep't 2019); Jean-Baptiste v. 153 Manhattan Ave. Hous. Dev. Fund Corp.. 124 A.D.3d 476, 477 (1st Dep't 2015).

C.P.L.R. § 3025(b). Leave to amend a complaint is freely granted unless the amendment would surprise or otherwise prejudice the opposing parties, Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 (2015); Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014); Machado v. Gulf Oil, L.P., 195 A.D.3d 26, 30 (1st Dep't 2021); Mashinsky v. Drescher, 188 A.D.3d 465, 466 (1st Dep't 2020), or the amendment lacks merit. C.P.L.R. § 3025(b); Mashinsky v. Drescher, 188 A.D.3d at 466; Avail 1 LLC v. Acquafredda Enters. LLC, 184 A.D.3d 476, 477 (1st Dep't 2020); Brook v. Peconic Bay Med. Ctr., 172 A.D.3d 468, 469 (1st Dep't 2019); Jean-Baptiste v. 153 Manhattan Ave. Hous. Dev. Fund Corp., 124 A.D.3d 476, 477 (1st Dep't 2015).

I. CROSS-MOTION TO AMEND THE COMPLAINT Leave to amend a complaint is freely granted unless the amendment would surprise or otherwise prejudice the opposing parties, Davis v. South Nassau Communities Hosp. , 26 N.Y.3d 563, 580, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015) ; Kimso Apts., LLC v. Gandhi , 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 (2014) ; Machado v. Gulf Oil, L.P. , 195 A.D.3d 26, 30, 146 N.Y.S.3d 66 (1st Dep't 2021) ; Mashinsky v. Drescher , 188 A.D.3d 465, 466, 131 N.Y.S.3d 891 (1st Dep't 2020), or the amendment lacks merit. C.P.L.R. § 3025(b) ; Mashinsky v. Drescher , 188 A.D.3d at 466, 131 N.Y.S.3d 891 ; Avail 1 LLC v. Acquafredda Enters. LLC , 184 A.D.3d 476, 477, 124 N.Y.S.3d 196 (1st Dep't 2020) ; Brook v. Peconic Bay Med. Ctr. , 172 A.D.3d 468, 469, 102 N.Y.S.3d 1 (1st Dep't 2019) ; Jean-Baptiste v. 153 Manhattan Ave. Hous. Dev. Fund Corp. , 124 A.D.3d 476, 477, 2 N.Y.S.3d 441 (1st Dep't 2015)

Finally, there is no opposition to the cross-motion to amend the complaint. CPLR § 3025 (b) states that courts shall freely give leave to amend in the absence of prejudice or surprise (see Machado v Gulf Oil, L.P., 195 A.D.3d 26, 30 [1st Dept 2021]). The court notes that, as plaintiff contends, Advantage likely will argue that there is no liability as against it due to the Graves Amendment (49 USC § 30106; see supra, n 2).

II. STANDARDS FOR AMENDING THE COMPLAINT Leave to amend a complaint is freely granted unless the amendment would surprise or otherwise prejudice the opposing parties, Davis v. South Nassau Communities Hosp., 26 N.Y.3d'563, 580 (2015); Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014); Machado v. Gulf Oil, L.P.. 195 A.D.3d 26, 30 (1st Dep't 2021); Mashinsky v. Drescher, 188 A.D.3d 465, 466 (1st Dep't 2020), or the amendment lacks merit. C.P.L.R. § 3025(b);