Lucido v. Mancuso

• Decision Date: 01 February 2008
• Docket Number: 2005-07606.
• Parties: GRACE RUTH LUCIDO, as Administratrix of the Estate of THOMAS LUCIDO, Deceased, Appellant, v. MARY MANCUSO, Defendant, and GREENBURGH PARTNERSHIP No. 26 et al., Defendants and Third-Party Plaintiffs-Respondents. DELCON CONSTRUCTION CORPORATION, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 220

851 N.Y.S.2d 238

2008 NY Slip Op 00952

GRACE RUTH LUCIDO, as Administratrix of the Estate of THOMAS LUCIDO, Deceased, Appellant, v. MARY MANCUSO, Defendant, and GREENBURGH PARTNERSHIP No. 26 et al., Defendants and Third-Party Plaintiffs-Respondents.

DELCON CONSTRUCTION CORPORATION, Third-Party Defendant-Respondent.

2005-07606.

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 1, 2008.

Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for appellant.

Quirk and Bakalor, P.C., New York City (Gloria B. Dunn of counsel), for defendants and third-party plaintiffs-respondents.

Ford Marrin Esposito Witmeyer & Glesser, LLP, New York City (Joseph D'Ambrosio and Andrew I. Mandelbaum of counsel), for third-party defendant-respondent.

OPINION OF THE COURT

CRANE, J.P.

More than 50 years ago, this Court held that a plaintiff seeking leave to amend a complaint to add a cause of action alleging wrongful death must make a competent showing of merit. In general, however, an application for leave to amend a pleading pursuant to CPLR 3025 (b) is governed by a substantially more permissive standard. 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. We hold in this case that causes of action alleging wrongful death should not be treated differently. The standard of "palpably insufficient or patently devoid of merit" applies to motions made pursuant to CPLR 3025 (b) for leave to amend a complaint to add a cause of action for wrongful death. In so holding, we trace, and overrule, the line of authority requiring a plaintiff to make an evidentiary showing by competent medical proof that a defendant's conduct caused the decedent's death.

I

On May 7, 1996, Thomas Lucido (hereinafter Thomas), a 35-year-old carpenter, allegedly was injured when he fell from a scaffold in the Town of Greenburgh. He commenced this action by service of a summons and complaint on or about August 25, 1998, naming as defendants the property owners and the general contractor. The complaint alleged, inter alia, that the defendants had violated Labor Law §§ 200, 240 (1) and § 241 (6). Issue was joined and, on or about July 12, 1999, Thomas's employer, Delcon Construction Corporation, was impleaded as a third-party defendant. On January 24, 2003, Thomas died. The death certificate lists, as the cause of death, "Acute Mixed Drug Intoxication (Cocaine and Heroin)."

The action was stayed until letters testamentary were issued, and Grace Lucido, as administratrix of the estate (hereinafter the plaintiff), moved to be substituted as the plaintiff, to lift the automatic stay due to Thomas's death, and to be granted leave to amend the complaint in the form annexed to the motion by, inter alia, adding a cause of action to recover damages for wrongful death. By order dated June 29, 2004, the Supreme Court (Nicolai, J.) granted the first two branches of the motion but denied the third "without prejudice to renewal within 30 days of the date of this order, upon proper proof, including a physician's affidavit which demonstrates the causal connection between the decedent's death in 2003 from an overdose of cocaine and heroin, as set forth in the death certificate, and [Thomas's] fall from the scaffold in 1996."

In support of its decision, the Supreme Court relied upon this Court's decision in Witonski v Feirstein (76 AD2d 920 [1980]) in which we held, in connection with a motion for leave to amend a complaint by adding a cause of action for wrongful death, that the affirmation of a nontreating physician was sufficient to establish the causal connection between the accident and the decedent's death.

The plaintiff renewed her motion, submitting, inter alia, an affidavit and a letter from Dr. Douglas Anderson, which were based on his review of Thomas's medical records. Dr. Anderson recounted that Thomas had a history of substance abuse, but asserted that Thomas had "maintain[ed] abstinence and attend[ed] [Alcoholics Anonymous] regularly for six years prior to the 1996 accident." The injuries from the construction accident, and consequent pain, led to a relapse into substance abuse. Dr. Anderson opined that Thomas's fatal overdose "was a chronological progression of events as documented in my report and was directly and causally related and connected to the accident of May 7, 1996 and the injuries sustained therein." In the proposed amended complaint, the plaintiff alleged, inter alia, that the defendants' negligence caused the injuries that resulted in Thomas's death.

The Supreme Court denied that branch of the plaintiff's renewed motion which was for leave to amend the complaint, holding that Dr. Anderson's conclusion was speculative:

"There is no objective support cited for his statement, other than a general statement as to his review of the medical records, that [Thomas] was in full recovery from substance abuse at the time of the accident, or for his statements that [Thomas's] use of cocaine and heroin arose as a result of unremitting pain from his injuries which could not be controlled by prescription pain medications, or from his depression caused by the accident."

In support of this holding, the Supreme Court cited our decision in Feinberg v Walter B. Cooke, Inc. (240 AD2d 623 [1997]). In similar procedural circumstances, we held in Feinberg that the medical affidavits failed to establish anything but a speculative connection between the defendant's alleged negligence and the decedent's death.

We agree with the Supreme Court that Dr. Anderson's affidavit is speculative and does not constitute competent medical proof establishing the connection between the accident and Thomas's death (see Ortiz v Bono, 101 AD2d 812 [1984]; cf. Kordonsky v Andrst, 172 AD2d 497, 498-499 [1991]). Thus, if competent medical proof were required at this stage of the action, we would affirm the Supreme Court's denial of that branch of the plaintiff's renewed motion which was for leave to amend the complaint to add a cause of action alleging wrongful death.

II

A motion for leave to amend a pleading under CPLR 3025 (b) and its predecessor statutes (see former Civ Prac Act §§ 245, 245-a, 245-b) was traditionally held to be completely separate and apart from a motion to test the legal sufficiency of a pleading (see CPLR 3211 [a] [7]). Thus, a court deciding a motion for leave to amend a pleading was not required to give any consideration at all to the legal sufficiency of the allegations that the movant sought to add by way of the proposed amendment. To obtain review of the sufficiency of the allegations, the opposing party was required to make a separate motion (see e.g. Grandview Constr. Corp. v Roreck Constr. Co., 14 AD2d 909 [1961]; Newman v Goldberg, 250 App Div 431, 431-432 [1937]; Doyle v Chatham & Phenix Natl. Bank, 219 App Div 522, 525-526 [1927]; Milliken v McGarrah, 164 App Div 110, 111 [1914]). In some cases, however, a slightly less liberal standard was stated. For example, in Amherst Bowling Ctr. v Dolce (11 AD2d 1079 [1960]), the Fourth Department stated that it declined to review the sufficiency or merits of the amended pleading, but went on to observe that "[i]t cannot be said as a matter of law that the insufficiency of the pleading is clear on its face and free from doubt. Under these circumstances, defendant should have an opportunity to assert the defense and the plaintiff to make such motions against it as it may deem advisable" (id.).

Even with liberality already accorded to motions for leave to amend pleadings under the Civil Practice Act, the drafters of the Civil Practice Law and Rules believed it appropriate to provide expressly for a liberal standard. In 1957, the Advisory Committee on Practice and Procedure of the Temporary Commission on the Courts (hereinafter the Committee) issued its First Preliminary Report to the Governor and Legislature. The Committee suggested that amendments or supplements to pleadings by leave of the court or by stipulation of all of the parties be permitted at any time. The last sentence of the proposed section emphasized the liberality with which such applications should be granted: "Leave shall be freely given upon terms that may be just" (First Prelim Rep of Advisory Comm on Prac & Pro, 1957 NY Legis Doc No. 6[b], at 77). The Committee explained that the last sentence "more explicitly states the policy of liberality" (id. at 78). And, the Committee wrote, the proposed rules "are intended to grant the widest possible discretion to the court in granting leave to serve supplemental pleadings and imposing terms" (id.).

When the CPLR was enacted (see L 1962, ch 308), CPLR 3025 (b) contained the language of the Advisory Committee's recommendation almost verbatim:

"Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances."

Nevertheless, in East Asiatic Co. v Corash (34 AD2d 432 [1970]), the First Department held that, in the interest of judicial economy, some scrutiny must be given a proposed amendment under CPLR 3025 (b). That this was a departure from the general rule was pointed out by Justice (as he then was) Owen McGivern in dissent: "I have always understood it to be the rule that barring surprise or prejudice, a timely application to amend a complaint will never be denied" (34 AD2d at 437).

Following East Asiatic Co. v Corash (34 AD2d 432 [1970]), the courts began to combine the analysis of a motion for leave to amend a pleading under CPLR 3025 (b) with the analysis of a motion to test the validity of...