Witonski v. Feirstein

• Decision Date: 30 June 1980
• Citation: Witonski v. Feirstein, 429 N.Y.S.2d 260, 76 A.D.2d 920 (N.Y. App. Div. 1980)
• Parties: Isabelle WITONSKI, as Administratrix, etc., et al., Appellants, v. Leonard FEIRSTEIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 260

429 N.Y.S.2d 260

76 A.D.2d 920

Isabelle WITONSKI, as Administratrix, etc., et al., Appellants, v. Leonard FEIRSTEIN, Respondent.

Supreme Court, Appellate Division, Second Department.

June 30, 1980.

Melvin S. Block, Brooklyn (Morton Miller, Brooklyn, on brief), for appellants.

DeSantis, Totura & Hargous, Woodbury (Dolores Gerber, Woodbury, on brief), for respondent.

Before TITONE, J. P., and MANGANO, GIBBONS and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action, inter alia, to recover damages for personal injuries on behalf of decedent Theodore J. Witonski, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated October 27, 1978, which denied their motion, inter alia, for leave to amend the complaint by adding thereto a cause of action for wrongful death, with leave to renew on proper papers.

Order reversed, without costs or disbursements, and motion granted. The proposed amended and supplemental complaint annexed to the moving papers is deemed served. Defendant's time to answer is extended until 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof.

Under the circumstances of this case, it was an abuse of discretion for Special Term to require plaintiffs to submit an affirmation by the decedent's treating physician showing a causal connection between the decedent's death and the injuries he suffered in the automobile accident with defendant, or, in the alternative, the affirmation of another physician explaining why the affirmation of the...