SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 15, 1969
ALICE G. SMITH, AS LIMITED ADMINISTRATRIX OF THE ESTATE OF DONALD W. SMITH, DECEASED, APPELLANT,
UNIVERSITY OF ROCHESTER MEDICAL CENTER ET AL., RESPONDENTS
Appeal from order of Monroe Special Term, denying motion to amend complaint.
Goldman, P. J., Del Vecchio, Marsh, Gabrielli and Bastow, JJ.
Memorandum: In this action brought for wrongful death and conscious pain and suffering against a hospital, the attending physician and an equipment supplier, plaintiff seeks to amend the complaint by (1) increasing the ad damnum clause of the complaint to $450,000 for wrongful death and $50,000 for pain and suffering, (2) to allege a partnership between the defendant Howe and a fellow practitioner, and (3) to add a cause of action for breach of warranty against the hospital. In the absence of laches and a failure of any prejudice to the defendants, it was an improvident exercise of discretion to deny leave to amend the ad damnum clause. The mere lapse of time, without more, is not sufficient ground for denial of the motion. There was neither surprise nor prejudice shown as to plaintiff's request to enlarge and clearly specify the negligence charged against defendant Howe, and it further appears that trial was not imminent. However, as to the request to add the cause of action for breach of warranty against the hospital, such an amendment is not proper. (See Perlmutter v. Beth David Hosp., 308 N. Y. 100; Mamunes v. Williamsburgh Gen. Hosp., 28 A.D.2d 998
, affd. 23 N.Y.2d 757.)
Order unanimously reversed, with costs, and motion granted to the extent that plaintiff's motion to amend to the complaint is granted in all respects, except as to the additional cause of action for breach of warranty against University of Rochester Medical Center.
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