Anderson v. Carney

Kane, J. P. Appeal from an order of the Supreme Court (Harris, J.), entered August 15, 1989 in Albany County, which granted plaintiff’s motion for leave to serve an amended complaint. Plaintiff commenced this action on October 3, 1988 to recover for injuries allegedly sustained in an automobile accident occurring on December 20, 1985. On April 28, 1989, plaintiff moved to amend her complaint to, inter alia, add her spouse as a plaintiff and assert his derivative claim for loss of consortium and companionship. Defendant opposed the mo [1003] tion, contending that the derivative cause of action was barred by the applicable Statute of Limitations. Supreme Court granted the motion, finding that the added claim "related back” to the original action. Defendant now appeals. We affirm. Generally, leave to amend a pleading to assert a new cause of action is not precluded by untimeliness so long as the earlier pleading gave the adverse party sufficient notice of the transaction out of which the new claim arises (see, CPLR 203 [e]; Bellini v Gersalle Realty Corp., 120 AD2d 345, 347-348). The derivative claim sought to be added here relates to the same series of events as the original complaint. We conclude then, that Supreme Court properly allowed plaintiff to amend the complaint. In so finding, we express our disagreement with the line of cases which has held that a spouse’s derivative cause of action for loss of services cannot be added to a pending action through the "relating back” provisions of CPLR 203 (e) upon a motion to amend the complaint after the Statute of Limitations has run as to the main action (see, e.g., Odell v Dalrymple, 156 AD2d 967 [4th Dept]; Clausell v Ullman, 141 AD2d 690 [2d Dept]; Laudico v Sears, Roebuck & Co., 125 AD2d 960, 961 [4th Dept]). We are instructed that CPLR 203 '(e) is available to add third-party defendants as defendants after the Statute of Limitations has run as an application addressed to the sound discretion of the trial court upon a motion to amend the complaint, and requires the court to determine, as a question of fact, whether any prejudice will result from a retroactive amendment (CPLR 3025 [b]; see, Duffy v Horton Mem. Hosp., 66 NY2d 473, 477). Here, we have a simple rear-end collision where plaintiffs action was commenced a few months before the expiration of the Statute of Limitations. The motion to amend to add a derivative cause of action on behalf of plaintiffs husband followed a few months later, grounded upon the same liability asserted in the original complaint (see, Schleidt v Stamler, 106 AD2d 264, 266; see also, Howard v Hachigian, 88 AD2d 1064, 1065; Rivera v St. Luke’s Hosp., 102 Misc 2d 727, 729). In the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff’s derivative cause of action. We cannot accept the proposition that such a new plaintiff is "a complete stranger to the suit”. Moreover, defendant is and has been a participant in the pending litigation and has, presumably, made a thorough investigation as to issues of liability (see, Liverpool v Arverne [1004] Houses, 67 NY2d 878, 879; Mastandrea v State of New York, 57 AD2d 679). In addition, particulars of the limited damages claimed are readily available through discovery. We therefore conclude that, upon policy considerations underlying the relevant statutes, and in consideration of principles of fairness and the lack of the showing of any prejudice to defendant, in this case the granting of the motion to amend the complaint was a valid exercise of the sound discretion of Supreme Court; its order should therefore be affirmed (see, Caffaro v Trayna, 35 NY2d 245, 250). Order affirmed, without costs. Kane, J. P., Weiss, Mikoll and Harvey, JJ., concur.