Opinion
May 17, 1993
Appeal from the Supreme Court, Kings County (Clemente, J.).
Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and the motion for leave to assert a cause of action to recover damages for lack of informed consent is denied.
In 1982 the plaintiff commenced an action against the defendant to recover damages for dental malpractice and breach of contract, but alleged no separate cause of action based upon lack of informed consent. Thereafter, discovery was conducted, and upon completion of discovery, the plaintiff filed a note of issue and certificate of readiness for trial in January 1989. After the case was reached for trial, the plaintiff moved for leave to serve an amended complaint to assert a cause of action predicated upon lack of informed consent.
It is well established that leave to amend pleadings shall be freely given unless the party opposing the motion can demonstrate prejudice or surprise from a delay (see, Moon v Long Beach Mem. Hosp., 173 A.D.2d 527; Girardi v Community Hosp., 137 A.D.2d 788). Although mere delay is insufficient to defeat a motion to amend, where an action "has long been certified [as] ready for trial, judicial discretion in allowing such amendments should be `"discreet, circumspect, prudent and cautious"'" (Perricone v City of New York, 96 A.D.2d 531, 533, affd 62 N.Y.2d 661, quoting Symphonic Elec. Corp. v Audio Devices, 24 A.D.2d 746; see also, Davidian v County of Nassau, 175 A.D.2d 908). Moreover, an application for leave to amend a pleading should be denied where the delay results in prejudice to the adverse party (see, Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957).
In this case, almost nine years passed between the commencement of the action and the eve of trial, when the plaintiff first moved to amend her complaint. However, the plaintiff has offered no reasonable excuse for this inordinate delay and, under the circumstances of this case, the unexplained delay constitutes sufficient prejudice so as to warrant denial of the plaintiff's motion (see, Matter of Department of Social Servs. v Jay W., 105 A.D.2d 19; Mint Factors v Castelle, 127 A.D.2d 636; Davis v Brown, 70 A.D.2d 873). Moreover, where, as here, the proposed amendment inserts a new theory of liability into the case on the eve of trial, it is clear that undue prejudice will result to the defendant (see, Davidian v County of Nassau, 175 A.D.2d 908, 910, supra; see also, Hypertronics Inc. v Digital Equip. Corp., 159 A.D.2d 607; Barakakos v Avellini, 185 A.D.2d 805). Specifically, "the fact that an informed consent claim necessarily depends on the recollections of the parties which unavoidably diminish over time," the longer the delay in asserting such a claim, the more it stands to reason that the opposing party will be prejudiced (Polak v Schwenk, 115 A.D.2d 142, 143; Smith v Bessen, 161 A.D.2d 847).
The record contains no affidavit from the plaintiff with respect to the merits of her claim for lack of informed consent. "[W]here a party is guilty of extended delay in moving to amend, the court should insure that the amendment procedure is not abused by requiring a reasonable excuse for the delay and an affidavit of merit" (Gallo v Aiello, 139 A.D.2d 490, 490-491 [emphasis added]; see also, Bertan v Richmond Mem. Hosp. Health Ctr., 106 A.D.2d 362; Alexander v Seligman, 131 A.D.2d 528).
For these reasons we conclude that the Supreme Court improvidently exercised its discretion in allowing the plaintiff leave to amend her complaint to assert a cause of action predicated on lack of informed consent. Bracken, J.P., Rosenblatt, Pizzuto and Santucci, JJ., concur.