SCOTT v. Naomi Ihedioha, M.D., et al., Defendants-Respondents-Appellants. (1999)

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered May 5, 1998, which, inter alia, granted plaintiff's motion to vacate a default in complying with a conditional order of dismissal and substituted Brenda Scott as the lawful representative of plaintiff decedent's estate, unanimously modified, on the law and the facts and in the exercise of discretion, to grant so much of plaintiff's motion as sought leave to amend the complaint to assert causes of action for wrongful death and conscious pain and suffering and to deem the amended complaint to have been served as of the date of this order, and otherwise affirmed, without costs.   Appeal from order, same court and Justice, entered May 15, 1997, which, to the extent appealed from, granted defendants' cross motion to dismiss the complaint unless plaintiff obtained letters testamentary and effected the necessary substitution of parties within 90 days, unanimously dismissed, without costs, as academic in light of the foregoing.   Appeal from order, same court and Justice, entered March 25, 1998, unanimously dismissed, without costs, as superseded by the appeal from the subsequently settled order, entered May 5, 1998.

Although the IAS court did not, in its May 5, 1998 order, technically address that portion of plaintiff's motion seeking amendment, it would be burdensome for us to require plaintiff to return to the motion court to obtain a ruling upon the motion to amend in the circumstances presented where the requested relief would be routinely granted.   We note in this connection that plaintiff's motion to amend was fully argued in the motion court and no showing of prejudice attributable to amendment was made (see, CPLR 3025[b];  cf., DePinto v. Rosenthal & Curry, 237 A.D.2d 482, 655 N.Y.S.2d 102).

MEMORANDUM DECISION.