Opinion
October 7, 1991
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.
Although leave to amend a pleading is generally liberally granted (see, Barbour v. Hospital for Special Surgery, 169 A.D.2d 385; Hauptman v. New York City Health Hosps. Corp., 162 A.D.2d 588; Matter of Department of Social Servs. v. Jay W., 105 A.D.2d 19), if the proposed amendment is patently lacking in merit or its lack of merit is "clear and free from doubt", it will not be permitted and leave should be denied as a matter of law (see, Hauptman v. New York City Health Hosps. Corp., supra; Norman v Ferrara, 107 A.D.2d 739; Grafer v. Marko Beer Beverages, 36 A.D.2d 295). Moreover, although as a general rule the legal sufficiency or merit of the proposed amendment is not examined on a motion to amend (see, Fisher v. Carter Indus., 127 A.D.2d 817; Sentry Ins. Co. v. Kero-Sun, Inc., 122 A.D.2d 204, 205; Norman v Ferrara, supra) the weight of authority provides that where a substantial question is raised as to the meritoriousness of a proposed amendment to a pleading, the court should resolve the question at the threshold in order to obviate the possibility of needless time-consuming litigation (see, Crimmins Contr. Co. v City of New York, 138 A.D.2d 138, affd 74 N.Y.2d 166; DeGuire v DeGuire, 125 A.D.2d 360; Andersen v. University of Rochester, 91 A.D.2d 851).
The amendment sought by the plaintiffs would lead to the inclusion of alleged acts of malpractice which occurred, if at all, more than two-and-one-half years prior to the commencement of this action (see, CPLR 214-a). Therefore, the proposed amended claims are time-barred. Moreover, as the plaintiff never presented herself to the respondents with any complaints related to her breast cancer, her intervening visits to the respondents for treatment of other conditions cannot serve as a predicate for the application of the continuing treatment doctrine to toll the running of the Statute of Limitations (see, Nykorchuck v Henriques, 78 N.Y.2d 255). Accordingly, as the Statute of Limitations bars the interposition of the allegations of malpractice which were the subject of the plaintiffs' proposed amendment, the plaintiffs' application for leave to serve an amended complaint should have been denied (see, Downes v Peluso, 115 A.D.2d 454; Twitchell v. Town of Pittsford, 78 A.D.2d 586).
In light of our determination we need not reach the other allegations of error. Mangano, P.J., Kunzeman, Miller and Copertino, JJ., concur.