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Wife’s Derivative Claim Added to Complaint After Expiration of Statute of Limitations

The First Department held that a wife’s derivative claim in a medical malpractice action brought by her husband could be added to the complaint after the statute of limitations had expired (disagreeing with the 2nd and 3rd Departments):

The motion court properly exercised its discretion in granting leave to amend. The original complaint placed Kings Harbor on notice of the underlying transaction (see CPLR 203 [f] …. We are in accord with the 3rd Department’s view that “[i]n 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 disagree with the cases holding that a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203 (f) (see e.g. Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006]; Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).  Giambrone v Kings Harbor Multicare Ctr., 2013 NY Slip Op 01898, 9235N 307139/09, 1st Dept. 3-21-13

 

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