Bynum v. Camp Bisco, LLC

been before this Court ( 151 AD3d 1427 [2017]; 135 AD3d 1066 [2016]; 135 AD3d 1060 [2016]).^[1] Following decedent’s death, plaintiff moved for, among other relief, leave to amend the complaint to add a cause of action for wrongful death, which defendants opposed. After a brief oral argument, Supreme Court issued an order that amended the caption, substituted plaintiff, individually and as administrator of decedent’s estate, as the plaintiff in this action, and granted the motion to amend.^[2] Defendants now appeal.

We affirm. Pursuant to CPLR 3025 (b), a party may amend its pleadings “at any time by leave of [the] court,” which “shall be freely given upon such terms as may be just” (see Kimso Apts., LLC v Gandhi, 24 NY3d 403 , 411 [2014]). To that end, “[t]he decision whether to grant leave to amend pleadings rests within the trial court’s sound discretion and[,] absent a clear abuse of that discretion, will not be lightly cast aside” (Cowsert v Macy’s E., Inc., 74 AD3d 1444 , 1444-1445 [2010] [internal quotation marks and citations omitted]; see Matter of Wechsler v New York State Adirondack Park Agency, 85 AD3d 1378 , 1380 [2011]). As recently clarified by this Court, on a motion for leave to amend a pleading, the movant need not establish the merits of the proposed amendment and, “ ‘in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ ” (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99 , 101-104 [2017] [brackets omitted], quoting Lucido v Mancuso, 49 AD3d 220 , 222 [2008]; see Kimso Apts., LLC v Gandhi, 24 NY3d at 411 ; LaLima v Consolidated Edison Co. of N.Y., Inc., 151 AD3d 832 , 834 [2017]; Cruz v Brown, 129 AD3d 455 , 456 [2015]; Holst v Liberatore, 105 AD3d 1374 , 1374-1375 [2013]). The party opposing the amendment bears the burden of demonstrating prejudice (see Kimso Apts., LLC v Gandhi, 24 NY3d at 411 ; Redd v Village of Freeport, 150 AD3d 780 , 781 [2017]).

Supreme Court providently exercised its discretion in granting plaintiff’s motion to amend the complaint to add a cause of action for wrongful death following the death of

decedent. In support of her motion, plaintiff submitted an affirmation alleging that decedent died as a result of injuries suffered due to defendants’ negligence, which defendants opposed by challenging the adequacy of proof of causation. In reply, plaintiff submitted decedent’s death certificate, which lists as the primary cause of death acute respiratory failure due to sepsis and anoxic brain injury that occurred years earlier. Secondarily, it indicated that decedent had a seizure disorder that contributed to her death, but was not related to the primary cause of death. Decedent’s dire condition and prognosis were known from the outset, discovery has been ongoing, the proposed amendment does not change the theory of recovery and, given its nature, obviously could not have been added prior to decedent’s death (see Kimso Apts., LLC v Gandhi, 24 NY3d at 411 ). In this procedural context, “[prejudice is more than the mere exposure of the [party] to greater liability,” as “there must be some indication that the [party] has been hindered in the preparation of [the party’s] case or has been prevented from taking some measure in support of [its] position” (id. [internal quotation marks and citations omitted]; see Redd v Village of Freeport, 150 AD3d at 781 ).

As Supreme Court correctly found, defendants failed to meet their burden of demonstrating either prejudice or hindrance and, on these facts, they cannot credibly claim surprise from the proposed amendment (see Redd v Village of Freeport, 150 AD3d at 781 ; see also Noble v Slavin, 150 AD3d 1345 , 1346 [2017]; Lakshmi Grocery & Gas, Inc. v GRJH, Inc., 138 AD3d 1290 , 1292 [2016]). Moreover, we have previously recognized that plaintiff has a viable negligence cause of action based upon allegations that decedent’s injuries were caused by defendants’ failure to ensure that she received adequate and timely emergency medical care (135 AD3d at 1067). Defendants have not demonstrated that the amendment, which adds a cause of action for wrongful death based upon that negligence (see Gonzalez v New York City Hous. Auth., 77 NY2d 663 , 668 [1991]), is “palpably insufficient or patently devoid of merit” (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99 , 101-104 [2017] [internal quotation marks and citation omitted]).^[3]