Opinion
December 13, 1973
Appeal from the Oneida Special Term.
Present — Del Vecchio, J.P., Moule, Cardamone, Simons and Henry, JJ.
Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: While a patient on February 29, 1972 at the Mohawk Valley General Hospital, plaintiff, a 93-year-old woman, suffered a fall which resulted in injury to her person. A summons was served on defendants in July of 1972 and in November of 1972 she died and her executrix sought to substitute herself as party plaintiff and to amend the complaint to state a cause of action for wrongful death. The supporting papers consisted of affidavits of the executrix and one of her attorneys stating that the injuries suffered by deceased because of the fall were a cause of her death. Since plaintiff did not set forth any factual basis or competent medical proof to support the claim that the subsequent death was caused by the original accident, her application to enlarge the complaint to include a cause of action for wrongful death must fail. She may, however, upon proper papers including a physician's affidavit and an affidavit of merit by a person having knowledge of the facts, renew her application ( Goldfarb v. 65 East 11th St. Corp., 40 A.D.2d 657; Robbins v. Healy, 35 A.D.2d 850; McCarthy v. Downes, 17 A.D.2d 919; Coleman v. Gelb, 12 A.D.2d 915; Bedarf v. Rosenbaum, 286 App. Div. 1103). The application to substitute the executrix as party plaintiff in place of the deceased was properly granted.