Probst v. Albert Einstein Medical Center

Order, Supreme Court, New York County (Schwartz, J.), entered November 24, 1980, granting reargument, and upon reargument, adhering to the order entered September 23, 1980, granting plaintiff’s motion for leave to amend, reversed, on the law, and motion denied, without costs. Appeal from the order, Supreme Court, New York County (Schwartz, J.), entered September 23, 1980, granting plaintiff’s motion for leave to amend, dismissed as superseded, without costs. Plaintiff Probst suffered from scoliosis. On January 29,1978, she underwent corrective surgery at defendant Albert Einstein Medical Center (Center). At that time, defendant Hoppenfeld inserted a metal rod into plaintiff’s spinal column. The rod was manufactured by defendant Zimmer USA, Inc. The rod allegedly fractured on June 22, 1979 and it was subsequently removed by surgery. The original complaint charged defendants Center and Hoppenfeld with negligence. Thereafter, plaintiff moved to serve an amended complaint containing allegations of (i) breach of warranty and (ii) strict products liability against the Center and Hoppenfeld. Special Term granted the motion under CPLR 3025 (subd [b]). Generally, leave to amend a complaint is freely given (CPLR 3025, subd [b]). However, leave will not be given where the proposed amendments do not state valid grounds for relief (East Asiatic Co. v Corash, 34 AD2d 432). The insertion of the metal rod was incidental to the medical services provided by the Center and Hoppenfeld. Since they did not technically sell the metal rod to the plaintiff, there is no merit to the two new causes proposed against them in the amended complaint (Perlmutter v Beth David Hosp., 308 NY 100). Hence, the plaintiff’s motion should have been denied. Concur — Murphy, P. J. Kupferman, Birns, Carro and Lynch, JJ.