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Vega-Ruiz v. Keller9/26/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendants (STEVEN M. KELLER, M.D., DAVID KATZ, M.D., SUSANNE Y. LEE, M.D., MANUEL TEJERA, M.D., ELI AVISAR, M.D., MITCH ROSEN, M.D., BETH ISRAEL MEDICAL CENTER s/h/a D*O*C*S, D*O*C*S SUTTON PARK, D*O*C*S CRESTWOOD II, D*O*C*S BRONX, *O*C*S/PHYSICIANS AFFILIATED WITH BETH ISRAEL MEDICAL CENTER) move for an order pursuant to CPLR §3025(b), granting leave to amend their Answers to add the affirmative defense that Plaintiff lacks standing to bring this action and upon granting such relief dismissing plaintiff's complaint. (See CPLR §3211(a)(3).
Plaintiff's second verified complaint sets forth eleven (11) causes of action ranging from malpractice to several discrimination causes of action. Plaintiff's verified Supplemental Bill of Particulars, dated June 17, 2004, withdrew the causes of action alleging several discriminatory practices. The remaining causes of action seek monetary damages arising from defendants failure to timely diagnose and treat a carcinoid tumor located in Plaintiff's left lung; improperly performing a "lower left lobectomy on September 24, 1996, failing to provide appropriate post operative care and lack of informed consent .
Plaintiff commenced this action by filing a Summons with Notice on February 26, 1999. (See Defendants' Notice of Motion, Ex."A"). Service of Plaintiff's Complaint was effectuated on July 26, 1999. Defendants joined issue on September 13, 2001. Plaintiff then served a Verified Second Amended Complaint dated May 17, 2002.
Leave to Amend Pleadings
Leave to amend a pleading should be freely granted absent a showing of prejudice resulting from the delay and provided the proposed amendment is not plainly lacking in merit (see, CPLR 3025 ; Fidelity Holdings Inc., v. Marom, 276 AD2d 468; 713 NYS2d 703 [2nd Dept. 2000]; Tarantini v. Russo Realty Corp., 273 AD2d 458, 712 NYS2d 358). The granting of such a motion is committed to the sound discretion of the trial court, and will not be lightly disturbed Santori v. Met Life (11A.D.3d 597, 784N.Y.S.2d 117; Henderson v. Gulati, 270 AD2d 308, 705 NYS2d 54).
Defendants seek to add the affirmative defense asserting Plaintiff lacks standing to bring this suit. (Defendants' Aff., p 6). This defense is based on the Plaintiff's failure to list this action as an asset (a potential claim under 11 USC §541(a)(1) in her bankruptcy proceeding. (id). Plaintiff does not show or even allege prejudice by the proposed amendment. Plaintiff's protest relates to the delay in asserting the defense of lack of legal capacity to bring this action. (Plaintiff's Aff., pp1, 2) Mere lateness is not a barrier to amending a pleading (Amica Mutual Ins. Co. v. Hart Alarm Systems, Inc. 218 AD2d 835, 629 NYS2d 874; Fitzpatrick v. Structure Tone Inc. 201 AD2d 373, 607 NYS2d 928). It is well settled that leave to amend may be sought at "any time"; and even a motion made on the "eve of trial, is not, in and of itself, a sufficient ground for denying leave to amend." (Barnes v. County of Nassau), 108 AD2d 50, 52 [2d Dept. 1985] See also Siegel, NY Practice, §237, at 398 [4th Ed. 2005].
In any event, Defendants have provided an adequate explanation for the delay in raising the defense regarding Plaintiff's lack of ability to sue. It was not until October 12, 2004, that Defendants learned when Plaintiff's Bankruptcy was commenced. (Defendants' Barroso's Reply Aff.). Defendants were unable to obtain Plaintiff's bankruptcy file from the court archives in Missouri until February 2005. (Defendants' Notice of Moti
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