Opinion
# 2018-050-021 Claim No. 127254 Motion No. M-91559
03-27-2018
LILLIAN M. SICARI AND ROBERT SICARI v. THE STATE OF NEW YORK
Alan Ripka & Associates, LLP By: N. Gershon Abramoff, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Alex J. Freundlich, Assistant Attorney General
Synopsis
Defendant's motion for an order pursuant to CPLR 3025 granting the State leave to amend its answer to assert two additional affirmative defenses is granted.
Case information
| UID: | 2018-050-021 |
| Claimant(s): | LILLIAN M. SICARI AND ROBERT SICARI |
| Claimant short name: | SICARI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only proper defendant, the State of New York. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127254 |
| Motion number(s): | M-91559 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Alan Ripka & Associates, LLP By: N. Gershon Abramoff, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Alex J. Freundlich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 27, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for an order pursuant to CPLR 3025 granting the State leave to amend its answer to assert two additional affirmative defenses. Claimants oppose the motion on the asserted grounds that defendant has not provided an excuse for the delay in pleading these two new defenses and that allowing them would greatly prejudice claimants.
The claim herein alleges that an employee of the State rear-ended claimants' car causing personal injury to claimant Lillian Sicari. The State now seeks to add the following affirmative defenses:
"a) Claimant did not sustain serious injuries as defined by Section 5102 (d) of the Insurance Law of the State of New York, and as a result, Claimant's exclusive remedy is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York;
b) The occurrence alleged in the Claim was spontaneous and unavoidable and created an emergency situation."
"Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party" (Jeboda v Danza, 133 AD3d 569 [2d Dept 2015]; see Sudit v Labin, 148 AD3d 1073 [2d Dept 2017]). "Neither mere lateness nor the absence of an excuse for the delay is a barrier to amendment" (Hilltop Nyack Corp. v TRMI Holdings, 275 AD2d 440 [2d Dept 2000]). When a claimant opposes a motion for leave to amend an answer so as to add a defense, claimant has the burden "to establish prejudice accruing to him [or her] as a consequence of defendant's failure to timely assert the defense, and to include a showing that the prejudice could have been avoided if the defense had been timely asserted" (Coleman v Worster, 140 AD3d 1002 [2d Dept 2016]).
Here, claimants argue that discovery is closed and they are greatly prejudiced by their inability to obtain expert testimony to address the level of injury sustained by claimant or to assess the accident and vehicle involved. However, contrary to claimants' assertion, as of the submission date of this motion a note of issue had not been accepted for filing by the Clerk of the Court. Furthermore, defendant affirms that there are outstanding discovery demands. In other words, discovery is ongoing. Importantly, claimants are - and have been - aware that the driver of the State vehicle stated from the outset that brake failure was the cause of the accident. Counsel for claimants asked about brakes and brake failure repeatedly upon the depositions conducted herein, including that of the driver of the State's vehicle.
In sum, claimants have not carried their burden and the Court finds the proposed amendment of the answer to assert the two proposed affirmative defenses is not patently devoid of merit and does not result in any surprise or prejudice to claimants (see Jeboda v Danza, 133 AD3d 569 [2d Dept 2015]).
In accordance with the foregoing, defendant's motion (M-91559) to amend its answer is granted. Defendant shall serve and file its amended answer (in the same form as the proposed answer offered in support of this motion) within 40 days of the filing of this decision and order with the Clerk of this Court.
March 27, 2018
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the State's motion: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition. 3. Reply Affirmation.