Opinion
2015-01-29
Julius GOODWIN, Plaintiff–Respondent, v. EMPIRE CITY SUBWAY COMPANY, LTD., et al., Defendants, The City of New York, et al., Defendants–Appellants.
Morris Duffy Alonso & Faley, New York (Kerry E. Sullivan and Andrea M. Alonso of counsel), for appellants.
Morris Duffy Alonso & Faley, New York (Kerry E. Sullivan and Andrea M. Alonso of counsel), for appellants.
Order, Supreme Court, New York County (Louis B. York, J.), entered on or about January 29, 2014, which denied the unopposed motion by the City of New York and the New York City Department of Transportation (collectively the City) to amend the answer to assert certain affirmative defenses and counterclaims, unanimously modified, on the law, to grant so much of the City's motion as sought to assert affirmative defenses and cross claims other than affirmative defenses based on Workers' Compensation, accord and satisfaction and the emergency doctrine, and otherwise affirmed, without costs.
The affirmative defenses based on Workers' Compensation Law, accord and satisfaction and the emergency doctrine are waived by the City. In the absence of any opposition, either to the motion below or to this appeal, it cannot be said that the proposed amended affirmative defenses or cross-claims are “palpably insufficient” or “patently devoid of merit” ( see Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504–505, 925 N.Y.S.2d 51 [1st Dept.2011]; Perrotti v. Becker, Glynn, Melamed & Muffly LLP, 82 A.D.3d 495, 498, 918 N.Y.S.2d 423 [1st Dept.2011] ), especially at this early stage of discovery. Nor can it be said that plaintiff or co-defendants were surprised or prejudiced by proposed amendments, as no party felt it necessary to oppose the motion. There is certainly no “indication that the [opposing party] has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position” ( Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d at 504, 925 N.Y.S.2d 51). The City was not required to establish the merits of each of the affirmative defenses or cross claims (see Perrotti v. Becker, Glynn, Melamed & Muffly LLP, 82 A.D.3d at 498, 918 N.Y.S.2d 423), so long as they were not palpably insufficient or patently devoid of merit, and did not surprise or prejudice any opposing party.