Moon v. Long Beach Memorial Hospital

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brucia, J.), dated November 24, 1989, as granted that branch of the plaintiffs’ motion which was for leave to serve a supplemental summons and to amend the complaint as asserted on behalf of the infant plaintiff to add additional defendants. Ordered that the order is affirmed insofar as appealed from, with costs. It is well established that leave to amend pleadings shall be freely given unless the party opposing the motion can demonstrate prejudice or surprise from a delay and that mere delay, absent a showing of prejudice, is insufficient to deny such leave (see, Girardi v Community Hosp., 137 AD2d 788; Covert Ave. Apts. v Town of Babylon, 134 AD2d 230; Buley v Beacon Tex-Print, 118 AD2d 630). It was not improvident for the court to permit the respondents to serve an amended complaint as asserted on behalf of the infant plaintiff under the circumstances herein as the initial complaint, notice of claim, bills of particulars and answers to interrogatories sufficiently apprised the appellants of the acts claimed to constitute the negligence and medical malpractice. The addition of the individual treating physicians, as actual tortfeasors in their personal capacities, rather 528 than just as employees of the appellants, cannot be said to have operated to surprise or prejudice the appellants, particularly because the theories of liability remained unchanged. Mangano, P. J., Brown, Sullivan, Harwood and Miller, JJ., concur.