Opinion
June 19, 1972
In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Kings County, entered September 21, 1971, which dened her motion for leave to serve an amended complaint pursuant to CPLR 3025 (subd. [b]). Order reversed, with $10 costs and disbursements, and motion granted. The amended complaint shall be served within 20 days after entry of the order to be made hereon. The notice of claim served on the defendant City of New York set forth that plaintiff's decedent was shot through the negligence and improper conduct of a police officer and the original complaint was framed in negligence. Although the proposed amended complaint is framed in assault as well as in negligence, all the causes relate to the same state of facts and therefore the addition of the assault causes does not prejudice defendant. Munder, Acting P.J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.