Nature of the Case
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Facts
Skylarsky (P) alleges that the decedent, Sofia Skylarsky, was under the care and treatment of New Hope (Ds) from January 5, 2000, until June 6, 2000, when she committed suicide. Ds moved pursuant to CPLR 3025(b) for an order granting leave to serve and file an amendment and supplement to their separate answers adding a Fourth, Fifth, Sixth and Seventh Affirmative Defense, and adding a Counterclaim against plaintiff Alexander Skylarsky for contribution and indemnity. Ds claim that evidence was adduced during the course of continuing discovery which reveals 'culpable conduct by P in failing to obtain emergency medical services for his wife and in further failing to follow explicit instruction to him by Ds to take his wife to a hospital emergency room to be evaluated. Ds allege that P's intervening negligence was a direct and proximate cause of Sofia's death.' Ds seek to add a counterclaim stating that P was negligent in failing to provide medical aid to his deceased wife by failing to call emergency medical services to her assistance, and/or in refusing and/or failing to take her to a hospital emergency room as instructed to do so by movants, and thereby movants seek indemnification and/or contribution from Alexander Skylarsky pursuant to CPLR 1401 et seq. Ds point to P's deposition testimony. P testified that on Monday, June 5, 2000, his wife was running around frantically and speaking nonsense, and he found a suicide note which his wife had written. P telephoned Dr. Galea at approximately 5:00-6:00 p.m., and described his wife's behavior. P did not recall whether Dr. Galea advised him to take the decedent to a hospital. P then received a telephone call from the decedent's social worker, Ruth Stein, who 'strongly recommended' that he take his wife to the emergency room. P testified that his wife had been in this condition 'for this terrible three days,' that he didn't know what to do, that he made several calls to his daughter, and that he decided that 'we will tomorrow morning we will go, we will go' to the hospital. Sophia was diagnosed with a psychotic disorder and prescribed anti-psychotic medication. On subsequent visits and increased problems, Dr. Galea increased decedent's anti-psychotic medication, prescribed additional medications, and scheduled a follow-up appointment in three weeks. Dr. Galea alleges that she advised P to take his wife to the emergency room in order to address P's complaints of his wife's inability to sleep and his desire to change his wife's medication. Dr. Galea advised P that he could take his wife to Maimonides Medical Center (which was closer to his residence), that Dr. Galea knew personally physicians at Maimonides, and that P could ask the doctor to call Dr. Galea. P remained at home with his wife. Early the next morning, some eight hours after his last conversation with Ms. Stein, the decedent fell from the fourth-floor fire escape outside her apartment window in an apparent suicide. Ps oppose the motion to amend.
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