Opinion
April 30, 1990
Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).
Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the motion is denied, with leave to renew should the plaintiff be so advised, in accordance herewith.
While we agree that leave to amend a pleading should be freely granted in accordance with CPLR 3025 (b) (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957), here we are not presented with a sworn statement of a medical expert establishing that the plaintiff's decedent died as a result of medical malpractice. Such a statement is required to support the subject motion (see, McGuire v. Small, 129 A.D.2d 429; Liebman v. Newhouse, 122 A.D.2d 252; Shapiro v. Beer, 121 A.D.2d 528). A sworn statement by counsel is insufficient for that purpose since an attorney is not qualified as a medical expert and cannot attest that medical malpractice was the cause of death (see, Fiorentino v. Cobble Hill Nursing Home, 101 A.D.2d 825). A sworn statement to this effect by a physician must include statements showing a departure from accepted medical practice, and that the departure was the cause of the death (see, Amsler v. Verrilli, 119 A.D.2d 786). Rubin, J.P., Eiber, Rosenblatt and Miller, JJ., concur.