Practice point: The First Department found that the motion court properly exercised its discretion in granting leave to
amend inasmuch as the original complaint placed the defendant on notice of the
underlying transaction, pursuant to CPLR 203 [f]. The First Department is in accord with the
Third 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." Anderson v. Carney,
161 AD2d 1002, 1003 (1990).
Student note: The First Department disagreed 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), specifically, Dowdall v. General Motors Corp. 34 A.D.3d 1221 (4th Dept. 2006) and Lucido v. Vitolo, 251 AD2d 383 (2d Dept 1998).
Case: Giambrone v. Kings Harbor Multicare Ctr., NY Slip Op 01898 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Sua sponte dismissal, and standing.
