Friday, November 6, 2015

Leave to amend the complaint.

Practice point:  The Appellate Division reversed the motion court and denied so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, finding that the proposed amendment was palpably insufficient.

The Appellate Division determined that the record shows that plaintiff's decedent suffered from numerous serious ailments prior to the alleged malpractice, and did not die until nearly two years after the alleged malpractice. There had been a number of other procedures performed by nondefendants, and plaintiff's decedent had been in the care of other nondefendants for those two years.  The conclusory assertion of causation, as stated in plaintiff's counsel's supporting affirmation, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants.

Student note:  A motion seeking leave to amend a complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged malpractice and the original plaintiff's death.

Case:  Imperati v. Lee, NY Slip Op 07907 (1st Dept. 2015)

Here is the decision.

Monday's issue:  Testimony of a witness who was not identified prior to trial.