Alexander v. Seligman

• Decision Date: 08 June 1987
• Citation: 131 A.D.2d 528,516 N.Y.S.2d 260
• Parties: Elsie ALEXANDER, etc., Appellant, v. Isaiah J. SELIGMAN, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 260

516 N.Y.S.2d 260

131 A.D.2d 528

Elsie ALEXANDER, etc., Appellant, v. Isaiah J. SELIGMAN, Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

June 8, 1987.

Leo Gilberg, New York City (Morgan Kennedy, of counsel), for appellant.

Rende, Ryan & Downes, White Plains (Wayne M. Rubin, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Martin, J.), dated December 30, 1985, which, upon a trial ruling granting the defendant Isaiah J. Seligman's motion to dismiss the plaintiff's complaint as against him, made immediately after the plaintiff's opening statement, is in favor of the defendant Isaiah J. Seligman.

ORDERED that the judgment is affirmed, with costs.

The trial court properly exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3025(b) for leave to amend her complaint, which was made at the commencement of trial. The plaintiff's motion was not supported by an affidavit showing the merit of the proposed amendments, nor by an affidavit showing any reasonable excuse for the extensive delay in seeking leave to amend the complaint (see, Schroeder v. Brooklyn Hosp., 119 A.D.2d 564-565, 500 N.Y.S.2d 733, lv. denied 68 N.Y.2d 603, 506 N.Y.S.2d 1026, 497 N.E.2d 706; Raies v. Apple Annie's Rest., 115 A.D.2d 599, 496 N.Y.S.2d 260; Bertan v. Richmond Mem. Hosp. & Health Center, 106 A.D.2d 362, 364, 482 N.Y.S.2d 492; Eggeling v. County of Nassau, 97 A.D.2d 395, 467 N.Y.S.2d 218). Further, on the eve of the trial, judicial discretion in allowing such an amendment should be discreet, circumspect, prudent and cautious (see, Risucci v. Homayoon, 122 A.D.2d 260, 261, 505 N.Y.S.2d 176; Raies v. Apple Annie's Rest., supra; Eggeling v. County of Nassau, supra; Smith v. Sarkisian, 63 A.D.2d 780, 781, 404 N.Y.S.2d 911, affd. 47 N.Y.2d 878, 419 N.Y.S.2d 74, 392 N.E.2d 1257). It is undisputed that the plaintiff had knowledge of all of the information upon which she based her proposed amendments to her complaint immediately after the defendant Seligman's examination before trial in December 1981, and yet, without any excuse, failed to seek leave to amend her complaint against him until October 28, 1985, the date of commencement of the trial (see, Santorelli v. New York City Tr. Auth., 121 A.D.2d 527, 504 N.Y.S.2d 24). Moreover, the trial court properly found that the plaintiff's proposed amendments would have prejudiced the defendant Seligman since they alleged a new theory of liability against him based upon previously unalleged facts (see, DiMauro v. Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 240, 483 N.Y.S.2d 383).

While dismissals after the...