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CAFFARO v. TRAYNA

35 N.Y.2d 245 (1974)

Josephine N. Caffaro, as Executrix of John Caffaro, Deceased, Appellant, v. John Trayna, Respondent.

Court of Appeals of the State of New York.

Decided October 8, 1974.

Attorney(s) appearing for the Case

Alfred S. Julien and David Jaroslawicz for appellant.

Joseph T. Mirabel and Walter F. Wortman for respondent.

Judges GABRIELLI, WACHTLER and WITMER concur with Judge JONES; Chief Judge BREITEL dissents and votes to affirm in a separate opinion in which Judge STEVENS concurs; Judge RABIN taking no part.

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 period from September, 1966 to May, 1967 defendant physician treated the decedent for throat ailments. The treatment was not successful...

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