Cruz v. Brown

• Decision Date: 04 June 2015
• Docket Number: 15318N, 308028/08
• Citation: Cruz v. Brown, 2015 NY Slip Op 4751, 129 A.D.3d 455, 11 N.Y.S.3d 33 (N.Y. App. Div. 2015)
• Parties: Jeverson CRUZ, etc., Plaintiff–Appellant, v. Lynwood BROWN, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 455

11 N.Y.S.3d 33

2015 N.Y. Slip Op. 04751

Jeverson CRUZ, etc., Plaintiff–Appellant

v.Lynwood BROWN, et al., Defendants–Respondents.

15318N, 308028/08

Supreme Court, Appellate Division, First Department, New York.

June 4, 2015.

Levine & Slavit, PLLC, New York (Ira S. Slavit of counsel), for appellant.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for respondents.

TOM, J.P., SWEENY, MOSKOWITZ, DeGRASSE, and RICHTER, JJ.

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered August 14, 2014, which denied plaintiff's motion for leave to amend the complaint to assert a cause of action for wrongful death, unanimously affirmed, without costs.

In denying leave to amend the complaint, Supreme Court erred by holding that plaintiff was required to make an evidentiary showing as to the merits of the proposed amendment, and by considering the underlying merits of the proposed wrongful death claim. “On a motion for leave to amend a pleading, movant need not establish the merit of the proposed new allegations, but must simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit” (Miller v. Cohen, 93 A.D.3d 424, 425, 939 N.Y.S.2d 424 [1st Dept.2012] [internal quotation marks omitted] ).

Applying the appropriate standard, we conclude that leave to amend was nonetheless properly denied, as plaintiff's proposed amendment is palpably insufficient. “A motion seeking leave to amend a personal injury complaint to assert a cause of action for wrongful death must be supported by competent medical proof of the causal connection between the alleged [negligence] and the death of the original plaintiff” (McGuire v. Small, 129 A.D.2d...