Opinion
15902 Index No. 950000/19 Case No. 2022–00191
05-10-2022
Kathryn ROBB, Plaintiff–Respondent, v. George ROBB, Defendant–Appellant.
Fullerton Beck, LLP, White Plains (Edward J. Guardaro, Jr., of counsel), for appellant. Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondent.
Fullerton Beck, LLP, White Plains (Edward J. Guardaro, Jr., of counsel), for appellant.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondent.
Webber, J.P., Singh, Moulton, Kennedy, Rodriguez, JJ.
Order, New York County (Deborah A. Kaplan, J.), entered December 6, 2021, which granted plaintiff's motion for summary judgment on liability and denied defendant's motion for leave to amend, unanimously affirmed, without costs.
In this action commenced under the Child Victims Act (CVA) ( CPLR 214–g ), Supreme Court properly denied defendant's motion to amend his answer to assert the affirmative defenses of infancy and mental disease or defect. Plaintiff demonstrated that an amendment to the answer at this stage of the litigation, after discovery was concluded, would unfairly prejudice her (see Lattanzio v. Lattanzio, 55 A.D.3d 431, 432, 866 N.Y.S.2d 151 [1st Dept. 2008] ).
The proposed amendment was also insufficient on the merits. Defendant admitted to engaging in sexual acts with plaintiff until he was 15 years old. These facts undermine defendant's infancy defense, as a person who is at least 13 years old can be held criminally responsible for felony sexual abuse under the current Penal Law ( Penal Law § 30.00[2] ; see also §§ 130.50, 130.70). Additionally, defendant's expert's affirmation opining as to defendant's defense of mental disease or defect was conclusory and unsupported by any evidentiary foundation to either establish prima facie that defendant suffered from a mental defect or raise a triable issue of fact as to his condition (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
Defendant's remaining contentions are either unavailing or academic in light of our determination.