
    Josephine N. Caffaro, as Executrix of John Caffaro, Deceased, Appellant, v. John Trayna, Respondent.
    Argued September 10, 1974;
    decided October 8, 1974.
    
      
      Alfred S. Julien and David Jaroslawicz for appellant.
    I. The court below erred in affirming the lower court’s decision denying plaintiff’s motion to amend the complaint to include a cause of action for wrongful death which was the direct result of the injury described and the occurrence set forth in the previously existing personal injury action. (Ringle v. Bass, 46 Misc 2d 896; Berlin v. Goldberg, 48 Misc 2d 1073; Holmes v. City of New York, 269 App. Div. 95, 295 N. Y. 615; Matter of Sellars v. Motor Vehicle Acc. & Ind. Corp., 20 A D 2d 350; Wilkening v. Fogarty, 40 A D 2d 1031; Palmer v. New York City Tr. Auth., 33 A D 2d 119, 37 A D 2d 766.) II. There was no unreasonable delay, and certainly no laches, in plaintiff’s moving for leave to amend the complaint to add a cause of action for wrongful death. (Martin v. Katz, 15 A D 2d 767; McCabe v. Queensboro Farm Prods., 27 A D 2d 936; Tobias v. Kesseler, 18 A D 2d 1094; Rife v. Union Coll., 30 A D 2d 504; Bradley v. O’Hare, 11 A D 2d 15, 939; Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123; Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Matter of Mason v. Busch’s Kredit Jewelry Co., 19 A D 2d 801.)
    
      
      Joseph T. Mirabel and Walter F. Wortman for respondent.
    I. The motion was properly denied as the cause of action for wrongful death is barred by the Statute of Limitations. (Secchi v. City of New York, 13 Misc 2d 756; Palmer v. New York City Tr. Auth., 37 A D 2d 766; Ringle v. Bass, 46 Misc 2d 896; Berling v. Goldberg, 48 Misc 2d 1073; Holmes v. City of New York, 269 App. Div. 95, 295 N. Y. 615; Roberson v. First Nat. City Bank, 63 Misc 2d 105; Wilkening v. Fogarty, 40 A D 2d 1031.) II. Laches alone should bar the relief requested. (Koi v. P. S. & M. Catering Corp., 15 A D 2d 775; Cox v. New York Tel. Co., 10 A D 2d 565; Morey v. City of Rochester, 274 App. Div. 969; Crombie v. Miller, 14 A D 2d 895; Smith v. Horn & Hardart Co., 276 App. Div. 869; Kind v. Rose Serebreny Corp., 28 A D 2d 988; Sortino v. Fisher, 20 A D 2d 25; White v. Good Operating Corp., 19 A D 2d 802; Coban v. Wil-Sade Realties, 19 A D 2d 605.)
   Jones, J.

Does the fact that an independent action for wrongful death would be time-barred necessarily foreclose amendment of the complaint in a pending action for conscious pain and suffering to include the action for wrongful death? We hold that it does not.

During the pefiod from September, 1966 to May, 1967 defendant physician treated the decedent for throat ailments. The treatment was not successful and in December, 1968 the decedent brought the-present action in malpractice. While this action was pending, on June 24¡ 1969 the decedent died of carcinoma of the larynx, the condition which defendant allegedly had negligently failed to diagnose. For reasons which do not appear in this record, the decedent’s will was not probated until September 18, 1972 on which day letters testamentary issued to the present plaintiff who was promptly substituted in the surviving action for personal injuries. It was not until the following January 15, however, that tbe substituted plaintiff moved to amend the complaint in the personal injuries action to add the cause of action for wongful death. The present appeal is focused on the Appellate Division’s affirmance of the denial of that motion to amend.

We recognize that historically the cause of action for wrongful death has been considered separate and distinct from the related cause of action for conscious pain and suffering. We also acknowledge that an independent action for wrongful death in this instance would have been time-barred by January 15, 1973 under the applicable Statute of Limitations — two years from the date of death (EPTL 5-4.1). Thus, unless the wrongful death action can be saved by inclusion with the surviving action for the decedent’s personal injuries, it has been lost.

The cause of action for wrongful death is the creature of statute rather than of common law, first created by the British Parliament in Lord Campbell’s Act of 1846, then established in our State by chapter 450 of the Laws of 1847, and now embodied in EPTL 5-4.1. In the same section by which the statutory cause of action is created it is provided that any such action must be commenced within two years after the decedent’s death. Were there no further applicable statutory provisions, the Statute of Limitations having been raised, the Trial Judge here would have had no choice but to deny the motion to amend as proposing a cause of action barred by the statute.

EPTL 11-3.3 (subd. [b], par. [2]), however, provides as follows: ‘ Where an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury, before verdict, report or decision, his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5-4.1.” By this provision the Legislature has given the personal representative the right, if an action has already been brought fop conscious pain and suffering, to join the related cause of action for wrongful death. The question for our determination is whether, when so joined, the cause of action for wrongful death would nonetheless be barred by the two-year Statute of Limitations if application for the joinder is made more than two years after the decedent’s death.

We first consider whether the cross reference in EPTL 11-3.3 (subd. [b], par. [2]) to “ the cause of action for wrongful death under 5-4.1 ” carries with it the time limitation set down in the latter section as a substantive part of that cause of action. The time limitation was expressed as a proviso when the action for wrongful death was created (L. 1847, oh. 450), but by chapter 178 of the Laws of 1880 the form of expression in section 1902 of the Code of Civil Procedure (the statutory predecessor of present EPTL 11-3.3, subd. [b], par. [2]) was changed — the cause of action was described in one sentence and the time limitation was reserved to a following, separate sentence, as now — ‘ ‘ Such an action must be commenced within two years after the decedent’s death.”

In Sharrow v. Inland Lines (214 N. Y. 101) we held that this change in form of statutory expression was significant and that thereafter the restriction of time was a procedural limitation on the remedy and not part of the substantive right created by the statute (contrast, e.g., Romano v. Romano, 19 N Y 2d 444, in which we held that a statutory time limit was an integral part of the legislatively created cause of action to annul a marriage for fraud). So construed the reference to the cause of action for wrongful death in EPTL 11-3.3 (subd. [b], par. [2]) does not import the two-year Statute of Limitations as an element of the cause of action.

But the matter cannot rest there. Although not a part of the substantive right, the two-year statute would still operate as a procedural bar to the remedy were it not for the provisions of CPLR 203 (subd. [e]). That section provides: “ A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” Thus, as to the cause of action for wrongful death to be added by amendment of the complaint, this section, if applicable, takes over for purposes of determining from what date the period of limitation shall be computed. Under it that date is related back to the date the action for conscious pain and suffering was commenced. So, here, the wrongful death cause of action is not barred if CPLR 203 (subd. [e]) is available.

We turn then to the question of the applicability of CPLR 203 (subd. [e]) in the circumstances disclosed in this record. CPLB 203 (subd. [e]) applies “ unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences ” on which the cause of action for wrongful death is predicated. No contention is advanced here that the pleadings in the personal injury action did not give the required notice of the transactions on which the wrongful death cause of action is based, and the record affords no ground for any such contention. Indeed, it would seem that any amendment authorized by EPTL 11-3.3 (subd. [b], par. [2]) — under which death must have resulted from the same injury on which the action for personal injuries is based — will necessarily meet the notice prerequisite of CPLB 203 (subd. [e]).

Thus, we conclude that by reason of the application, in combination, of EPTL 11-3.3 (subd. [b], par. [2]) and CPLB 203 (subd. [e]) the executrix of this decedent’s estate had the right to amend the complaint in the surviving action for personal injuries to include the cause of action for wrongful death notwithstanding that the motion for such amendment was made more than two years after the decedent’s death.

We observe, that policy considerations support the result dictated by our analysis of the relevant interrelated statutory provisions. Any Statute of Limitations reflects a policy that there must come a time after which fairness demands that a defendant should not be harried; the duration of the period is chosen with a balancing sense of fairness to the claimant that he shall not unreasonably be deprived of his right to assert his claim. Objectively, too, an inference is available that a genuine claim might normally be expected to have been made within the period of time selected. The balancing of these considerations (and perhaps others in certain instances) leads to the legislative choice of a specific time period. The recognition of such broad principles in the application of the relevant statutes here calls for permission to amend this complaint to include the wrongful death action. While considerations of fairness to the claimant estate might not require an extension beyond the customary two-year period following the claimant’s death, and one might normally expect that means would have been found to assert this claim within that period, it cannot be said on this record that to allow the claim would work unfairness to this defendant. If there is here a provable claim, only unfairness to defendant or inescapable statutory mandate should foreclose assertion of that claim.

This defendant in any event will be required under the original pleadings to undertake defense of the issue of liability raised in the original malpractice action. Inclusion of the cause for wrongful death will not significantly expand the scope of proof or the relevant legal considerations on the issue of liability. The amendment will, of course, introduce new aspects on the issue of damages, but defendant does not suggest how the failure to bring this cause within two years after the decedent’s death has prejudiced him in the assembly or introduction of evidence in support of his defense as to such additional elements of damage. There are not here considerations of judicial repose or foreclosure of stale claims so persuasive as to compel the recognition of a time-bar.

It is suggested in the dissent that a defendant may be prejudiced with respect to proof on the issue of causation of death. This particular defendant does not press this difficulty on us. As to the future, each defendant in a personal injury action will be alerted, after the announcement of today’s decision, to the possibility, if the plaintiff dies, that the pending action may be enlarged to include the wrongful death claim even after the expiration of two years following death. Preparations for a possible defense then cannot be abandoned with the passage of two calendar years.

Even if it be accepted, as the dissenters suggest, that in the circumstances of this case no serious twinges of a sensitive conscience would be aroused if this particular claim for wrongful death were barred, the individual characteristics of a specific instance cannot be permitted to weigh heavily in the resolution of issues of statutory construction, the consequences of which will extend well beyond the particular case.

On our analysis, in sum, the inclusion of the claim for wrongful death is not supplemental ” in the sense that it is based on “ subsequent transactions ”. The participation of the defendant, on which his liability, if any, must be predicated, had drawn to full conclusion before service of the complaint in the action for conscious pain and suffering. And by service of the original pleadings he was put fully on notice as to what it was claimed he had done or omitted or both for which it was then and is now asserted that he is liable. The injured person’s death is simply an additional consequence of defendant’s conduct for which he may be held responsible as surely would be true in more familiar instances of additionally discovered elements of damages.

We hold that it was error as a matter of law to have denied the motion to amend the complaint as proposed. Accordingly, the order of the Appellate Division should be reversed and the motion to amend should be granted.

Chief Judge Breitel

(dissenting). The majority opinion draws a fine distinction to overcome the requirement, mandated in EPTL 5-4.1, that the wrongful death claim be brought within two years of death. With the statutory construction and policy considerations on. which its analysis rests, however, I cannot agree. Most troublesome perhaps is the use of CPLR 203 (subd. [e]) to merge unjustifiably two disparate causes of action.

CPLR 203 (subd. [e]), set forth in the majority opinion, provides flexibility in transactional pleading to mitigate the impact of Statutes of Limitation, under a now-rejected formalism. Before CPLR, and, for that matter, before the modern approach to pleading, litigátion was bedevilled and constricted by forms of action as they had tortuously evolved from and through the common law. For better or for worse, but mostly for worse, Statutes of Limitation were measured by formal causes of action, thus determining when formal causes of action arose. Unfortunately, that is still sometimes true (cf. Mendel v. Pittsburgh Plate Glass Co 25 N Y 2d 340).

But that is not the problem in this case. Wrongful death is not merely an aggravated damage claim predicated on personal injury, but an entirely different cause of action. The personal injury action is brought by the party for his own personal injuries. Where those injuries result in fatality, the wrongful death action is brought by the representative of the decedent’s estate on behalf of the distributees for loss of support and other medical and funeral expenses incidental to death (see EPTL 5-4.1, 5-4.3). Thus, the claims are proper to different parties, are predicated on discrete theories of loss, and, as in this case, may accrue at different times. The only common basis is defendant’s initial wrongful conduct to which injury and death are proximately related. In sum, they are distinct and separate claims by almost all, if not all tests.

Returning to CPLR 203 (subd. [e]), the relation-back provision of that statute was intended solely to unfreeze the rigid cause of action categories of another and earlier day. CPLR 203 (subd. [e]) deems a “cause of action” asserted in an amended pleading to have been interposed at the time of the original pleading if related to the same claim or transactions embraced in the original pleading. Expressly excluded, however, are situations where ‘ the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” Indeed, CPLR 203 (subd. [e]) was designed in terms to cover only “ amended pleadings ”, not a “ supplemental ” pleading of additional occurrences (see CPLR 3025, subd. [b]). The purpose of CPLR 203 (subd. [e]) is to give the plaintiff someJeeway in determining the precise legal classification of rights he seeks to enforce as a result of defendant’s wrongful conduct. It is not to give the injured party’s dependents a tolling of the Statute of Limitations on a claim which had not accrued as of the initial pleading (see McLaughlin, Practice Commentary to CPLR 203, McKinney’s Cons. Laws of N". Y., Book 7B, p. 122; but see Supplementary Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 203, 1973 Supp., p. 11).

As for EPTL 11-3.3 (subd. [b], par. [2]), also set forth in the majority opinion, it is simply a rational grant of right to add the death cause of- action to the complaint for personal injuries, not because it is an extension of the personal injuries claim, but because it would be economical to try the cases together. The implication one should draw is that the enlargement of the complaint is permitted only if there is the right to sue, of which the lack of a limitations bar is at the threshold. The statute does not, as the majority seems to agree, permit enlargement to include an otherwise barred claim, however barred. The statute allows joinder as a procedural mechanism; it does not change substantive rights or purport to revive substantive rights terminated by limitation, release, or the like.

These would still be mere technicalities supporting a framework of logic and little more, but for a significant fact which makes the issue one of substantial justice. Neither the deceased’s lawyers nor defendant evidently knew of his death until the two-year limitation period had expired. This makes quite difficult the discovery of evidence as to the cause of death and its relationship to the alleged malpractice, which for this purpose may be assumed to have occurred.

It is staleness of proof to which Statutes of Limitation are primarily addressed, not to bar valid claims, but to prevent the assertion of claims, dubious, or difficult to disprove because of the lapse of time and its adverse effect on the availability and reliability of evidence (see 1 Weinstein-Korn-Miller, New York Civ. Prac., par. 201.01). Since the proximate cause of the death of plaintiff’s testator is a decisive issue in the wrongful death action, one of the principal reasons for the two-year limitation period is to allow the defendant a reasonable opportunity to assemble evidence with respect to the circumstances surrounding death. Although a physician found guilty of malpractice or any other tort-feasor is generally liable to the injured party or his dependents for subsequent wrongful aggravation of the injuries by other physicians, the initial tortfeasor is entitled to seek indemnity or contribution from the succeeding negligent physicians (see Primes v. Ross, 123 N. Y. S. 2d 702; cf. Montgomery v. Edelstein, 245 App. Div. 732; see, generally, Ann., Indemnity — Improper Medical Treatment, 8 ALR 3d 639; 45 N. Y. Jur., Physicians and Surgeons [rev.], §§ 166, 168). And there will in many instances, be a substantial issue of fact whether the death of the injured party was caused by the original malpractice. Thus, a physician charged with malpractice, notably only diagnostic malpractice, leading to wrongful death will have a valid concern with receiving timely notice of the event and circumstances of death, in order promptly to investigate and obtain evidence of the proximate cause of death and the likelihood of supervening malpractice or negligence by others. The two-year Statute of Limitations recognizes this concern, but is undermined by the ruling in this case.

The practical precedential consequences cannot be minimized. The bar to the wrongful death action has been effectively removed whenever there has been a precedent injury action. Indeed, it is doubtful that the Legislature would itself have gone so far, particularly where it has strongly resisted extending the applicable Statutes of Limitation in cases of medical malpractice.

This case provides an egregious application for the new rule. The diagnostic malpractice occurred in 1966-1967. The May, 1968 action evidently lay dormant. Decedent died in 1969. No personal representative was qualified until 1973, and not until 1973 was the old complaint sought to be enlarged, over six years since the alleged malpractice. Good causes of action are not so lightly forgotten; but old ones, even if not very good, are valuable nuisances because of the difficulty of proof especially where there has not been early notice of claim.

In summary, the majority parlays two statutes into a statutory melange, like two playing cards bracing a flimsy. Neither construction can stand on its own bottom. Neither statute was intended to nor should it have the reach it is being given in this case. Adding their disparate functions together does not generate a sound rule or provide sound statutory construction.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

Judges Gabrielli, Wachtleb and Wither concur with Judge Jones; Chief Judge Bbbitel dissents and votes to affirm in a separate opinion in which Judge Stevens concurs; Judge Rabin taking no part.

Order reversed, with costs, and plaintiff’s motion to amend the complaint granted. Question certified answered in the negative. 
      
      . In passing we note the apparent incongruity in considering a wrongful death action to have been interposed prior to death. CPLR 203 creates a legally effective fiction as to the date of interposition. As with other fictions in the law it does not unduly dismay us that the statutorily created fiction does not conform to the facts. Indeed the fiction is laid down for the very purpose of commanding a legal result which, without the fiction, would not follow from the facts.
     
      
      . To avoid any possible unintended inference to be drawn from the reasoning on which we base our ultimate determination in this case, we note that because we conclude, on authority of Sharrow v. Inland Lines (214 N Y. 101, supra) that the two-year time limitation of EPTL 5-4.1 is not an integral part of the substantive cause of action for wrongful death, we do not wish to be understood to imply that were we to judge that the time limitation was such a part we would necessarily hold that CPLB 203 (subd. [e]) would be inapplicable. It could be argued that provisions laying down the “ method of computing periods of limitation generally ” should be interpreted to apply to a period of limitation prescribed as an element of the substantive right as well as to the more familiar procedural Statutes of Limitation. In the disposition of this case we do not, however, reach this issue and imply no view with respect to its proper resolution.
     
      
       Designated pursuant to section 2 of article VI of the State Constitution.
     