Opinion
December 18, 1967
In an action to recover damages for wrongful death and for conscious pain, etc., allegedly caused by the negligence and malpractice of two hospitals and two physicians, defendants Goldberg and Schulman, the physicians, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated March 8, 1967, as denied their motion to amend their answer so as to add a partial affirmative defense that plaintiff has been paid $7,500 by another person for his connection with the alleged wrongful death of plaintiff's intestate. Order reversed insofar as appealed from, without costs, and motion of the appealing defendants granted. Said defendants' amended answer, as set forth in the record on appeal, is deemed served as of the time of the entry of the order hereon. Notwithstanding a delay of over five years in making this motion, plaintiff has not been prejudiced by the delay ( Livant v. Livant, 18 A.D.2d 383, app. dsmd. 13 N.Y.2d 894; Bellamy v. Prime, 25 A.D.2d 923; Derby v. Prewitt, 12 N.Y.2d 100; Sternberg v. Walsh, 273 App. Div. 972). Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.