Howard v. Hachigian

— Appeal from an order of the Supreme Court at Special Term (Conway, J.), entered August 11, 1981 in Rensselaer County, which denied plaintiffs’ motion to amend their complaint and bill of particulars. The Howards allegedly sustained cervical injuries as a result of a motor vehicle accident which occurred on April 6, 1976. Royal Howard’s injuries subsided a few days after the occurrence. Plaintiffs’ initial complaint, served in 1978, consisted of a 1065 cause of action by the wife to recover for her allegedly permanent injuries and a second cause of action wherein the husband asserted his derivative claim as well as one for property damage to his motor vehicle. In 1981, after the Statute of Limitations had expired and the case had been noticed for trial, Royal Howard began exhibiting symptoms which his neurologist diagnosed as “definitely related” to the automobile accident. Plaintiffs’ motion, pursuant to CPLR 203 (subd [e]) and 3025 (subd [b]), to amend their complaint and bill of particulars was denied and this appeal ensued. Plaintiffs urge on this appeal that Royal Howard’s claim for personal injuries should be allowed pursuant to CPLR 203 (subd [e]) which provides: “Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed, at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” (emphasis added). We disagree. The doctrine of “relation back” is permissible only when the original pleading gives the adverse party sufficient notice of the transaction out of which the claim arose (Caffaro v Trayna, 35 NY2d 245; Cerrato v Crown Co., 58 AD2d 721; Murphy v General Motors Corp., 55 AD2d 486). The derivative cause of action of Royal Howard did not give defendants notice that he was making a claim for personal injuries, nor did any of the subsequent proceedings in this protracted lawsuit of five and one-half years so indicate. To permit such a late amendment would be to the grave prejudice of defendants who would be precluded from conducting the timely investigation necessary to the preparation of their defense. The prejudice to defendants of such a late claim is obvious. Order affirmed, with costs. Sweeney, J. P., and Mikoll, J., concur; Kane, J., concurs in a separate memorandum; Main and Yesawich, Jr., JJ., dissent and vote to reverse in a memorandum by Yesawich, Jr., J.