Opinion
November 30, 1970
In a medical malpractice action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Nassau County, dated February 24, 1970, which denied defendants' separate motions to dismiss the action for failure to prosecute and granted a cross motion to amend the caption of the action so as to substitute the executors of plaintiff (now deceased) as plaintiffs and for leave to serve an amended complaint adding a cause of action for wrongful death. Order modified by striking therefrom the decretal provisions granting said cross motion and substituting therefor a provision granting said motion to the extent of the substitution of parties plaintiff and denying said motion otherwise, without prejudice to renewal upon proper papers which shall include competent medical proof of causal connection between the alleged malpractice and the death of the original plaintiff. As so modified, order affirmed, without costs. Absent proof as above indicated the granting of leave to serve the proposed amended complaint was an improvident exercise of discretion ( Augenbraun v. G B Distributors, 17 A.D.2d 785; McCarthy v. Downes, 17 A.D.2d 919; Rubin v. Grossman, 34 A.D.2d 680). Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.