Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Ricotta, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Order insofar as appealed from unanimously reversed on the law with costs and plaintiff's motion granted. Memorandum: Supreme Court erred in denying plaintiff leave to serve an amended complaint containing an additional derivative claim on behalf of the father of the infant plaintiff. Since the original complaint gave notice of the transactions and occurrences to be proved pursuant to the amended pleading, the father's additional derivative claim is not time barred (see, CPLR 203 [e]; Caffaro v Trayna, 35 N.Y.2d 245; O'Connor v West, 124 A.D.2d 1050 ; Rivera v St. Luke's Hosp., 102 Misc.2d 727). Moreover, defendants have not established that they would suffer prejudice if the amended derivative claim is permitted (see, Rutz v Kellum, 144 A.D.2d 1017).