ALLEN v. John Doe, M.D., et al., Defendants. (2025)

Order, Supreme Court, New York County (Kathy King, J.), entered March 26, 2025, which, to the extent appealed from, granted defendants’ motion pursuant to CPLR 3025(b) to amend their answer to add an affirmative defense of immunity, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting defendants leave to amend their answer to assert immunity protections afforded by the executive orders issued during the COVID–19 pandemic and the Emergency or Disaster Treatment Protection Act (EDTPA).  Plaintiff identifies no prejudice from the 15–month delay in this action, which is still in the early stages of discovery (see Seda v. New York City Hous. Auth., 181 A.D.2d 469, 469–470, 581 N.Y.S.2d 20 [1st Dept. 1992], lv denied 80 N.Y.2d 759, 589 N.Y.S.2d 309, 602 N.E.2d 1125 [1992]).  Moreover, the amendment is not patently insufficient given that the alleged malpractice occurred during the time covered by the EDTPA.  Defendants were not required to submit an affidavit showing that decedent's treatment was impacted by COVID–19 (see Pier 59 Studios, L.P. v. Chelsea Piers, L.P., 40 A.D.3d 363, 366, 836 N.Y.S.2d 68 [1st Dept. 2007];  see also Daniels v. Empire–Orr, Inc., 151 A.D.2d 370, 371, 542 N.Y.S.2d 614 [1st Dept. 1989]).

Plaintiff's contention that the EDTPA runs afoul of the New York Constitution is not properly before this Court.

We have considered plaintiff's remaining arguments and find them unavailing.