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Fazio Masonry11/3/2005
contract damages sought by plaintiff in the original complaint. Damages under Fazio's claims could include psychologist's bills, medications and monetary reparations for injuries to his mental state. These new claims are not similar to those in the complaint and could vastly increase the measure of defendants' liability for items of which they were not on notice through plaintiff's complaint, making it inappropriate to permit their introduction into this action after the statute of limitations had expired.
The situation presented here is distinguishable from circumstances in which a parent or spouse has been permitted to amend a complaint to add a derivative claim to a personal injury action (compare Anderson v Carney, 161 AD2d 1002 [husband permitted to join as plaintiff with loss of consortium claim]; Ferguson v Kane, 155 AD2d 903 [father, originally plaintiff in representative capacity, permitted to add derivative claim in individual capacity]; Rivera v St. Luke's Hosp., 102 Misc 2d 727 [same]). In those cases, the derivative claim was tied to the original claim and could not stand alone; Fazio's claims here were independent of plaintiff's claims. Additionally, the defendants in those cases knew, or reasonably could have known, that a derivative claim could arise from the original plaintiffs' personal injury actions; defendants here were not on notice of Fazio's emotional distress and personal injury claims through the filing of plaintiff's breach of contract and trade defamation action. Because Fazio's claims do not relate back to the original complaint, Supreme Court should not have permitted amendment of the complaint to add those claims.
Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur.
ORDERED that the orders are reversed, on the law, with costs, and motions denied.
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