The following papers numbered EF 64-95 read on this motion by the plaintiff for leave to amend the complaint to add a cause of action for wrongful death. PAPERS NUMBERED Notice of Motion — Affidavits — Exhibits EF 64-91 Affirmations in Opposition — Exhibits EF 92-94 Replying Memorandum EF 95 Upon the foregoing papers it is ordered that this motion by the plaintiff for leave to amend the complaint to add a cause of action for wrongful death is decided as follows: This action, which was commenced in 2017, arises out of a Long Island Railroad train derailment which occurred on October 8, 2016 between the New Hyde Park and Merillon Avenue stations in Nassau County, New York. At the time of the accident, plaintiff George Baselice and his wife, the decedent Carmela Baselice, were passengers on the Long Island Railroad when the train was sideswiped by a Long Island Railroad work train. Plaintiff alleges that the decedent, Carmela Baselice, suffered serious personal injuries, including a traumatic brain injury with symptoms of being jumpy and hyper vigilant in the car, post-traumatic stress disorder, major depressive disorder, dizziness, vertigo, blackouts, seeing stars and headaches. Thereafter, Carmela was involved in a fatal car accident on April 2, 2020 on Old Country Road in Suffolk County. Plaintiff alleges that Carmela crashed head on into a concrete retaining wall. Plaintiff George Baselice was appointed as Administrator of his wife’s estate, and the caption was amended to reflect such appointment. The death certificate listed Carmela’s cause of death as “probable neurological event.” Plaintiff now seeks to amend the complaint to add a claim for wrongful death. Plaintiff contends that the injuries Carmela sustained in the 2016 railroad accident likely caused her to lose control of her vehicle, resulting in the April 2020 fatal accident. Additionally, plaintiff alleges that the 2016 accident caused a significant injury to Carmela’s neck, and that this significant injury more likely than not contributed to her death. It is well settled that applications for leave to amend a pleading under CPLR 3025(b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party or is palpably insufficient or patently devoid of merit. (Wander v. St. John’s Univ., 163 AD3d 896, 896 [2d Dept 2018]; Favia v. Harley-Davidson Motor Co., Inc., 119 AD3d 836, 836 [2d Dept 2014]; Longo v. Long Is. R.R., 116 AD3d 676, 677 [2d Dept 2014].) In support of the motion, plaintiff submits, inter alia, the affidavit of forensic pathologist Dr. Joseph A. Felo. Dr. Felo states that Carmela had several severe neurological ailments resulting from the train derailment on October 8, 2016, including traumatic brain injury. Dr. Felo opines that the October 8, 2016 accident more likely than not caused the April 2, 2020 motor vehicle crash. Specifically, Dr. Felo states that Carmela most likely suffered a neurological event directly related to the October 8, 2016 derailment, such that she was dizzy and confused and that likely caused her to lose control of her vehicle and veer of the road, which resulted in the accident on April 2, 2020 and her death. Moreover, Dr. Felo avers that a suicide related to the October 8, 2016 accident cannot be ruled out given Carmela’s history of debilitating anxiety, depression and suicidal ideation following the 2016 derailment. Dr. Felo notes that the accident was a single car accident, at a high rate of speed creating extreme force, with no indication of another vehicle striking her vehicle or causing her to veer off the road. Thus, this court cannot conclude, as a matter of law, that the proposed amendment to add a claim fr wrongful death is palpably insufficient or patently devoid of merit. Further, defendant has presented no evidence that it will be prejudiced or surprised by the proposed amendment. This action is not yet on the trial calendar. The court also notes that defendant has been aware since at least August 2020 of the plaintiff’s death, and it was defendant’s counsel who notified the court of the death. Defendant argues, in opposition, that the proposed amendment is untimely since it is barred by the two year Statute of Limitations for wrongful death. (EPTL §5-4.1[1].) Plaintiff maintains that the proposed amendment is timely pursuant to the relation back doctrine. As noted above, the decedent died in the automobile accident on April 2, 2020. Normally, the Statute of Limitations for wrongful death would have expired on April 2, 2022. However, on March 20, 2020, at the height of the Covid-19 pandemic in this state, Governor Andrew Cuomo issued Executive Order 202.8. Executive Order 202.8 provided that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the civil practice law and rules or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” The Governor subsequently issued a series of further Executive Orders which extended the tolling provisions until November 3, 2020. Executive Order 202.72 stated that the Covid-19 toll was no longer in effect as of November 4, 2020. Thus, these executive orders tolled time limitations from March 20, 2020, through and including November 3, 2020. (Espinal v. Port Auth. of N.Y. & N.J., 213 AD3d 101 [2d Dept 2023]; Brash v. Richards, 195 AD3d 582, 584 [2d Dept 2021].) Thus, the Statute of Limitations for wrongful death expired in this matter on November 4, 2022. Defendant asserts that the proposed amendment is untimely since the motion to amend the complaint was not filed until December 27, 2022, 53 days after the expiration of the Statute of Limitations. However, plaintiff argues that under the relation back doctrine, the cause of action for wrongful death is timely. The “relation-back doctrine” permits a plaintiff to interpose a claim or cause of action which would ordinarily be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint. (CPLR 203[f]; Cady v. Springbrook NY, Inc., 145 AD3d 846, 846-847 [2d Dept 2016]; Moezinia v. Ashkenazi, 136 AD3d 990, 992 [2d Dept 2016].) Under this doctrine, a new theory of recovery may be asserted, so long as it arises from the same transactions alleged in the original complaint. (39 Coll. Point Corp. v. Transpac Capital Corp., 27 AD3d 454, 455 [2d Dept 2006].) If the new claim relates back to the facts, circumstances and proof underlying the original complaint, it will not be barred by the statute of limitations. (39 Coll. Point Corp. v. Transpac Capital Corp., 27 AD3d at 454-455.) The original complaint, which was interposed prior to the death of Carmela, gave notice of the transactions and occurrences on which the wrongful death cause of action in the amended complaint is based. The original complaint and the wrongful death cause of action both arise from the 2016 train derailment. The medical evidence submitted by the plaintiff alleges that the injuries suffered by the plaintiff in the 2016 accident, both physical and psychological, were very likely the cause of the 2020 automobile accident. As noted above, the death certificate lists the immediate cause of Carmela’s death as “probable neurological event.” The bill of particulars, as well as the various supplemental bills of particulars and medical records annexed to the motion, list a number of neurological injuries stemming from the 2016 accident. These allegations and medical findings, together with Dr. Felo’s opinion, at a minimum, presents an issue as to whether the 2016 accident was a contributing factor in the 2020 fatal automobile accident. Therefore, the wrongful death cause of action is timely under the relation-back doctrine. (see DeLuca v. PSCH, Inc., 170 AD3d 800, 802 [2d Dept 2019].) Accordingly, this motion by the plaintiff for leave to amend the complaint is granted, and the proposed amended complaint, in the form annexed to the moving papers as Exhibit Q, is deemed timely and validly served. Dated: June 2, 2023
