Opinion
# 2012-049-024 Claim No. 120468 Motion No. M-81108
05-23-2012
CRESPO v. THE STATE UNIVERSITY OF NEW YORK and DOWNSTATE AT LICH HOLDING COMPANY, INC.
Synopsis
Defendant's motion to amend answer granted in part and denied in part. Case information
UID: 2012-049-024 Claimant(s): MERCEDES CRESPO Claimant short name: CRESPO Footnote (claimant name) : Defendant(s): THE STATE UNIVERSITY OF NEW YORK and DOWNSTATE AT LICH HOLDING COMPANY, INC. Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 120468 Motion number(s): M-81108 Cross-motion number(s): Judge: David A. Weinstein Langsam Law LLP Claimant's attorney: By: Elise Hagouel Langsam, Esq. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Daniel Chu, Assistant Attorney General Third-party defendant's attorney: Signature date: May 23, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The present claim, filed on October 14, 2011, alleges that claimant Mercedes Crespo was injured when she was caused to trip and fall because of a broken, defective, and dangerous condition of pavement located behind a building known as 94 Amity Street, Brooklyn, New York. On November 28, 2011 issue was joined, and defendant's answer interposed a number of denials along with seven affirmative defenses.
Defendant now brings this motion pursuant to CPLR 3025(b) and the Unified Rules for the Court of Claims (22 NYCRR § 206.7[b]) seeking an order granting it permission to amend its answer to assert the following four affirmative defenses: "a) The Court of Claims does not have jurisdiction over the named defendant Downstate at LICH Holding Company, Inc. [proposed eighth affirmative defense]; b) The State of New York does not own the building described in the claim [proposed tenth affirmative defense]; and c) Claimant allegedly injured during the course of her employment, has her remedy under the Worker's [sic] Compensation Law [proposed eleventh affirmative defense]" (Chu Aff. ¶ 5; Exhibit C). Defendant's initial motion also added a ninth affirmative defense, but defendant withdrew the application as to that defense; by letter dated May 23, 2012.
CPLR 3025(b) provides that "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just . . ." Moreover, "[l]eave to amend an answer to assert an affirmative defense generally should 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" (Tomasino v American Tobacco Co., 57 AD3d 652 [2d Dept 2008]).
Claimant opposes the amendment as to the proposed tenth and eleventh affirmative defenses. Regarding the proposed tenth affirmative defense, clamant contends that the denial of ownership is not a proper affirmative defense and rather should be addressed in a denial. General denials concern "matters on which the party making the allegations, and not the party denying them, has the burden of proof" (Northway Engineering, Inc. v Felix Industries, Inc., 77 NY2d 332, 336 [1991]; CPLR 3018[a]). Once an allegation is denied, the pleading party must prove the allegation (see Siegel, Practice Commentary, McKinney's Consol Laws of NY, Book 7B, CPLR 3018, C3018:2). The claim herein does not allege ownership, and defendant's answer already contains a denial concerning allegations relating to "design, construction, operation, maintenance, control, management, inspection and repair" of the area where claimant tripped and fell. As such, the proposed tenth affirmative defense is simply unnecessary and is thus devoid of merit.
CPLR 3018(a) sets forth the three forms of denial.
With respect to the proposed eleventh affirmative defense, claimant argues, through the affirmation of her counsel, that since she was not employed by either of the named defendants, a workers' compensation defense will not act as a bar where there are allegations of affirmative negligence by a third party. As a general proposition, claimant's contention is correct. As the Court of Appeals noted in Fung v Japan Airlines Co., Ltd. (9 NY3d 351, 357 [2007]), "the workers' compensation remedy is generally not exclusive if the employee is injured by a third person." There are exceptions to this principle, though, which turn on the existence of a defendant's "working relationship with the injured plaintiff sufficient in kind and degree so that the third party, or the third party's employer, may be deemed plaintiff's employer" (Id. at 359).
Defendant's submission is silent on claimant's employment status, and defendant does not intimate why it believes this affirmative defense might be valid. Claimant therefore contends that since defendant has not submitted "documentary evidence" indicating that the proposed amendment may have merit, defendant's application should be denied (Aff. in Opp. ¶ 3). But the law in the Second Department does not require such evidence before an amendment to a pleading may be granted. In Lucido v Mancuso (49 AD3d 220 [2d Dept 2008]), the Second Department considered at length certain of its prior holdings that had required parties seeking to amend their pleadings to submit some evidentiary support for the proposed claim or defense, and held that those cases were "no longer to be followed," as "[n]o evidentiary showing of merit is required under CPLR 3025 (b)" (Id. at 229). Rather, leave should be granted unless the non-moving party would be prejudiced thereby, or "the insufficiency or lack of merit is clear and free from doubt"(Id. at 227 [citation omitted]). Among the cases explicitly overruled by Lucido was Joyce v McKenna Assoc. (2 AD3d 592 [2d Dept 2003]), which had upheld a denial of leave to amend an answer to add an affirmative defense under the Workers' Compensation Law, because the defendant had failed to adduce evidence of an employment relationship (Lucido, 49 AD3d at 229).
Some recent Second Department rulings continue to state that submission of documentary evidence is required to support an amendment to an answer, based on caselaw prior to Lucido and without reference to that decision (see Zito v County of Suffolk, 81 AD3d 722, 724 [2d Dept 2011]; Pike v New York Life Ins. Co., 72 AD3d 1043, 1047 [2d Dept 2010]). The great majority of holdings, however, adhere to Lucido (see e.g. Clark v Clark, 93 AD3d 812, 816 [2d Dept 2012]; Maldonado v Newport Gardens, Inc., 91 AD3d 731 [2d Dept 2012]). There is no indication in Zito or in Pike that the court sought to overturn Lucido sub silentio and without consideration of Lucido's detailed reasoning for rejecting earlier precedent. Moreover, the standard cited in Zito and Pike had no impact on the results in those cases; in both instances, the Appellate Division reversed the trial court's denial of leave to amend defendant's answer. I therefore conclude that the appropriate standard governing an application to amend an answer remains that set forth in Lucido, and decide this motion in accordance with that standard.
Claimant does not allege prejudice here, and this motion therefore turns on the sufficiency or merit of the defense. I cannot say, on the basis of the minimal record before me, that it is "free from doubt" that in defendant's proposed eleventh affirmative defense lacks merit. The only record evidence on the question of claimant's employment at the time of the accident is the representation of Crespo's counsel that claimant "was not employed by either of the respondents" (Aff. in Opp. ¶ 4). The statement of an attorney without direct personal knowledge cannot, however, establish that there is no possibility this defense can succeed (cf. Arriaga v Michael Laub Co., 233 AD2d 244 [1st Dept 1996] [affirmation by attorney without personal knowledge not sufficient to sustain motion to strike affirmative defense]). Nor can I make such a finding because defendant has not come forward with any evidence of an employment relationship itself; to so hold would be to ignore the ruling in Lucido. Finally, as noted, a workers' compensation defense may be meritorious in certain limited cases even against a party "other than the injured plaintiff's direct employer" (Fung, 9 NY3d at 358).
Since the minimal record of this motion does not demonstrate that it is beyond all doubt that the State's affirmative defense based on the availability of an alternative remedy under the Workers' Compensation Law lacks merit, and in the absence of any evidence of prejudice or harm to claimant from the proposed amendment, defendant's motion to amend its answer to add its proposed eleventh affirmative defense is granted (see Bonavita v McNicholas, 72 AD3d 859 [2d Dept 2010] [granting leave to amend answer to add affirmative defense that action is barred by Workers' Compensation Law, where no prejudice would result and defense not patently devoid of merit]; Myung Soon Kim v Hyunchul Chong, 8 AD3d 456 [2d Dept 2004] [affirming grant of leave to amend answer to add affirmative defense that action barred by Workers' Compensation Law, absent showing of prejudice or surprise even where it was first raised after the action was ready to proceed to trial]).
As to the proposed eighth affirmative defense, claimant does not oppose the amendment and it is not patently devoid of merit.
In view of the foregoing,
IT IS ORDERED that defendant's motion no. M-81108 is GRANTED IN PART, to the extent that within 30 days of the filing of this Decision and Order, defendant shall serve and file its amended answer, in the form attached as exhibit C to its moving papers, containing the proposed eight and eleventh affirmative defenses and omitting the proposed ninth and tenth affirmative defenses; and
For consistency, defendant shall entitle the granted amendments (proposed eight and eleventh affirmative defenses) as the Eight Affirmative Defense and Ninth Affirmative Defense in the Amended Verified Answer.
IT IS FURTHER ORDERED, that defendant's motion is otherwise DENIED.
May 23, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion and Affirmation in support, and annexed Exhibits.
2. Claimant's "Affirmation in Opposition to Respondents' Motion to Amend Their Answer."
3. Defendant's Reply Affirmation.
4. Defendant's letter to the Court dated May 23, 2012.