GIOVINCO v. GOLDMAN

ORDERED that the order is affirmed, without costs or disbursements.

Although leave to serve an amended pleading should be liberally granted, leave should be denied, as a matter of law, where the proposed amendment is "patently lacking in merit" (Staines v. Nassau Queens Med. Group, 176 A.D.2d 718; see, Bonnen v. Chiang, A.D.2d [2d Dept., May 8, 2000]; Perrini v. City of New York, 262 A.D.2d 541). Contrary to the defendant's contention, as a litigant in a proceeding under chapter 13 of the United States Bankruptcy Code (11 U.S.C. ch 13), the plaintiff possessed the requisite capacity to maintain this medical malpractice action (see, Olick v. Parker Parsley Petroleum Co., 145 F.3d 513; accord, Matter of Danwood Properties/78 v. Thorson, 209 F.3d 114; Cable v. Ivy Tech. State Coll., 200 F.3d 467; Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209; Murray v. Board of Educ. of City of New York, 248 B.R. 484; Matter of Bowker, 245 B.R. 192; Matter of Griner, 240 B.R. 432; Donato v. Metropolitan Life Ins. Co., 230 B.R. 418; see also, Matter of Southern Housing v. Moore, 2000 WL 432433 [Ala., April 21, 2000]; Dance v. Louisiana State Univ. Med. Cent. at Shreveport, 749 So.2d 870; cf., Goldstein v. St. John's Hosp., 267 A.D.2d 426; Pinto v. Ancona, 262 A.D.2d 472). Accordingly, the defendant's motion for leave to serve an amended answer interposing the affirmative defense of lack of capacity, and for summary judgment thereon, was properly denied.