New law on leave to amend to add a cause of action in wrongful death.

The Second Department has held that a motion seeking leave to amend a complaint to add a cause of action alleging wrongful death must be decided as would any motion to amend, pursuant to CPLR 3025(b), and should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, in Lucido v. Mancuso, which was decided on February 1, 2008.

The court expressly overruled a line of authority requiring a plaintiff to make an evidentiary showing by competent medical proof that defendant's conduct caused decedent's death. In effect, the holding means that, in the absence of prejudice or surprise, the motion for leave to amend will be denied only if the new cause of action would not withstand a motion to dismiss for legal insufficiency under CPLR 3211(a)(7).