Opinion
Argued November 9, 1999
January 18, 2000
In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated January 25, 1999, which denied his motion for leave to amend his answer, and upon amendment of the answer, for summary judgment dismissing the complaint based on lack of capacity to sue, and granted the plaintiff's motion to amend the caption by substituting his trustee in bankruptcy as plaintiff, nunc pro tunc.
Aaronson, Rappaport, Feinstein Deutsch, LLP, New York, N Y (Steven C. Mandell of counsel), for appellant.
Milton Danon, New York, N.Y., for respondent.
DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN and HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
More than 16 months after a jury verdict in this medical malpractice action in favor of the plaintiff and against the defendant, the defendant moved for leave to amend his answer to allege that the plaintiff lacked the capacity to sue and, upon amendment of the answer, for summary judgment dismissing the complaint. The defendant argued that the plaintiff's failure to have scheduled the malpractice action as an asset in a Chapter 7 bankruptcy proceeding filed after the action had accrued rendered the plaintiff without capacity to sue (see, Pinto v. Ancona, 262 A.D.2d 472 [2d Dept., June 14, 1999]; Hansen v. Madani, 263 A.D.2d 881 [3d Dept., July 29, 1999]; Weitz v. Lewin, 251 A.D.2d 402 ; Matter of First Montauk Sec. Corp. v. Chiulli, 245 A.D.2d 507; Matter of C M Plastics, 168 A.D.2d 160 ). However, by waiting until more than 16 months after the trial had ended, and after his motion for judgment notwithstanding the verdict was denied, the defendant, who admitted in papers in support of his motion to amend that he was aware of the plaintiff's bankruptcy proceeding before the trial, must be deemed to have waived such a defense (see, City of New York v. State of New York, 86 N.Y.2d 286 ; George Stokes Elec. Plumbing v. Dye, 240 A.D.2d 919 ; Harte v. Richmond County Sav. Bank, 224 A.D.2d 585 ). The defendant's remaining contention is without merit.
RITTER, J.P., SULLIVAN, GOLDSTEIN, and H. MILLER, JJ., concur.