Smith v. Hellman

In a negligence action to recover damages for personal injuries, defendant Marvin Heilman appeals from so much of an order of the Supreme Court, Kings County, dated September 8, 1976, as granted the branch of plaintiff’s motion which sought leave to serve and file an amended summons and complaint, adding thereto a cause of action for wrongful death. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the said branch of the motion is 567 denied, without prejudice to its renewal upon proper papers which shall include a physician’s affidavit establishing the causal connection between the death and the initial accident. Special Term erred in granting leave to amend the complaint so as to add a cause of action for wrongful death and to increase the ad damnum clause. Absent a physician’s affidavit indicating the causal connection between the death and the initial accident, the granting of leave to serve the proposed amended complaint was an improvident exercise of discretion (see Vastola v Maer, 48 AD2d 561; Robbins v Healy, 35 AD2d 850; Rubin v Grossman, 34 AD2d 680). Margett, Acting P. J, Shapiro, Titone and Suozzi, JJ, concur.