Anderson v. Carney

• Decision Date: 24 May 1990
• Citation: 557 N.Y.S.2d 575,161 A.D.2d 1002
• Parties: Beryl A. ANDERSON, Respondent, v. Kristi M. CARNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 575

557 N.Y.S.2d 575

161 A.D.2d 1002

Beryl A. ANDERSON, Respondent, v. Kristi M. CARNEY, Appellant.

Supreme Court, Appellate Division Third Department.

May 24, 1990.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Susan M. Di Bella, of counsel), Albany, for appellant.

Friedman & Manning, P.C. (Michael P. Friedman, of counsel), Delmar, for respondent.

Before KANE, J.P., and WEISS, MIKOLL, HARVEY and YESAWICH, JJ.

KANE, Justice Presiding.

Appeal from an order of the Supreme Court (Harris, J.), entered August 15, 1989 in Albany County, which granted plaintiff's motion for leave to serve an amended complaint.

Plaintiff commenced this action on October 3, 1988 to recover for injuries allegedly sustained in an automobile accident occurring on December 20, 1985. On April 28, 1989, plaintiff moved to amend her complaint to, inter alia, add her spouse as a plaintiff and assert his derivative claim for loss of consortium and companionship. Defendant opposed the motion, contending that the derivative cause of action was barred by the applicable Statute of Limitations. Supreme Court granted the motion, finding that the added claim "related back" to the original action. Defendant now appeals.

We affirm. Generally, leave to amend a pleading to assert a new cause of action is not precluded by untimeliness so long as the earlier pleading gave the adverse party sufficient notice of the transaction out of which the new claim arises (see, CPLR 203[e]; Bellini v. Gersalle Realty Corp., 120 A.D.2d 345, 347-348, 501 N.Y.S.2d 674). The derivative claim sought to be added here relates to the same series of events as the original complaint. We conclude then, that Supreme Court properly allowed plaintiff to amend the complaint.

In so finding, we express our disagreement with the line of cases which has held that a spouse's derivative cause of action for loss of services cannot be added to a pending action through the "relating back" provisions of CPLR 203(e) upon a motion to amend the complaint after the Statute of Limitations has run as to the main action (see, e.g., Odell v. Dalrymple, 156 A.D.2d 967, 549 N.Y.S.2d 260; Clausell v. Ullman, 141 A.D.2d 690, 529 N.Y.S.2d 575; Laudico v. Sears, Roebuck & Co., 125 A.D.2d 960, 961, 510 N.Y.S.2d 787). We are instructed that CPLR 203(e) is available to add third-party defendants as defendants after the Statute of Limitations has run as an application addressed to the sound discretion of the trial court upon a motion to amend the complaint, and requires the court to determine, as a question of fact, whether any prejudice will result from a retroactive amendment (CPLR 3025[b]; see, Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 477, 497 N.Y.S.2d 890, 488 N.E.2d 820).

Here, we have a simple rear-end collision where plaintiff's action was commenced a few months before the expiration of the Statute of Limitations. The motion to amend to add a derivative cause of action on behalf of plaintiff's husband followed a few months later, grounded upon the same liability asserted in the original complaint (see, Schleidt v. Stamler, 106 A.D.2d 264, 266, 482 N.Y.S.2d 481; see also, Howard v. Hachigian, 88 A.D.2d 1064, 1065, 452 N.Y.S.2d 741; Rivera v. St. Luke's Hosp., 102 Misc.2d 727, 729, 424 N.Y.S.2d 656). In the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff's derivative cause of action. We cannot accept the proposition that such a new plaintiff is "a complete stranger to the suit". Moreover, defendant is and has been a participant in the pending litigation and has, presumably, made a thorough investigation as to issues of liability (see, Liverpool v. Arverne Houses, 67 N.Y.2d 878, 879, 501 N.Y.S.2d 802, 492 N.E.2d 1218; Mastandrea v. State of New York, 57 A.D.2d 679, 393 N.Y.S.2d 817). In addition, particulars of the limited damages claimed are readily available through discovery.

We therefore conclude that, upon policy considerations underlying the relevant statutes, and in consideration of principles of fairness and the lack of the showing of any prejudice to defendant, in this case the granting of the motion to amend the complaint was a valid exercise of the sound discretion of Supreme Court; its order should therefore be affirmed (see, Caffaro v. Trayna, 35 N.Y.2d 245, 250, 360 N.Y.S.2d 847, 319 N.E.2d 174).

Order affirmed, without costs.

WEISS, MIKOLL and HARVEY, JJ., concur.

YESAWICH, J., dissents and votes to reverse in a memorandum.

YESAWICH, Justice (dissenting).

I respectfully dissent.

Pleading amendments which merely add or substitute parties, " 'where the cause of action remains unchanged' ", have been liberally allowed (Schleidt v. Stamler, 106 A.D.2d 264, 266, 482 N.Y.S.2d 481, quoting Van der Stegen v. Neuss, Hesslein & Co., 243 App.Div. 122, 131, 276 N.Y.S. 624, affd. 270 N.Y. 55, 200 N.E. 577; see, e.g., ...