Summary
finding conclusory allegation of causal connection insufficient
Summary of this case from Jones v. Beth Israel Hosp.Opinion
2015-10-29
Patricia IMPERATI, Plaintiff–Respondent, v. David S. LEE, M.D., et al., Defendants–Appellants, “John Does 1–5”, et al., Defendants.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell, Elizabeth B. Boggia of counsel), for appellants. Law Offices Of Marc S. Albert, Astoria (Marc S. Albert of counsel), for respondent.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell, Elizabeth B. Boggia of counsel), for appellants. Law Offices Of Marc S. Albert, Astoria (Marc S. Albert of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about March 14, 2014, which granted so much of plaintiff's motion as sought to amend the complaint to add a cause of action for wrongful death, unanimously reversed, on the law, without costs, and the motion denied.
The court improperly granted plaintiff's motion to amend the complaint to include a cause of action for wrongful death, as the proposed amendment is palpably insufficient. “A motion seeking leave to amend a personal injury 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 death of the original plaintiff” ( McGuire v. Small, 129 A.D.2d 429, 429, 513 N.Y.S.2d 691 [1st Dept.1987]; see also Cruz v. Brown, 129 A.D.3d 455 [1st Dept.2015] ). 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, following a number of other procedures performed by nondefendants and while in the care of other nondefendants for those two years. Plaintiff's counsel's conclusory assertion of causation, contained in his affirmation in support of the motion, was insufficient to establish a causal connection between the decedent's death and the originally alleged malpractice by defendants ( see Griffin v. New York City Tr. Auth., 1 A.D.3d 141, 767 N.Y.S.2d 15 [1st Dept.2003] ).