Opinion
2020–03714 Index No. 707580/17
07-20-2022
Salim SIDDIQUI, respondent, v. Tirrell T. SMITH, et al., appellants, et al., defendants.
McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, NY (Patrick M. Murphy of counsel), for appellants. Sacco & Fillas, LLP, Astoria, NY (Alexander Berger of counsel), for respondent.
McCabe, Collins, McGeough, Fowler, Levine & Nogan LLP, Carle Place, NY (Patrick M. Murphy of counsel), for appellants.
Sacco & Fillas, LLP, Astoria, NY (Alexander Berger of counsel), for respondent.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Tirrell T. Smith and Felix A. Smith appeal from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered February 27, 2020. The order, insofar as appealed from, denied that branch of the motion of the defendants Tirrel T. Smith and Felix A. Smith which was pursuant to CPLR 3025(b) for leave to amend their answer to include a new affirmative defense.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action to recover damages for personal injuries in connection with a motor vehicle collision, the defendants Tirrell T. Smith and Felix A. Smith (hereinafter together the defendants) moved, inter alia, pursuant to CPLR 3025(b) for leave to amend their answer to include a new affirmative defense based on res judicata and collateral estoppel. In an order entered February 27, 2020, the Supreme Court, among other things, denied that branch of the defendants’ motion. The defendants appeal. We affirm the order insofar as appealed from.
In general, defendants may amend their answer to include a new defense pursuant to CPLR 3025(b) "at any time by leave of court or by stipulation of all parties" (id.; see GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37, 40, 136 N.Y.S.3d 439 ). As that subdivision commands, leave to amend should be "freely given upon such terms as may be just including the granting of costs and continuances" ( CPLR 3025[b] ; see Murray v. City of New York, 43 N.Y.2d 400, 404–406, 401 N.Y.S.2d 773, 372 N.E.2d 560 ).
"The determination to permit or deny amendment is committed to the sound discretion of the trial court" ( Clarke v. Acadia–Washington Sq. Tower 2, LLC, 175 A.D.3d 1240, 1241, 105 N.Y.S.3d 905 ; see Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 704, 131 N.Y.S.3d 687 ). "[L]eave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party" ( DLJ Mtge. Capital, Inc. v. David, 147 A.D.3d 1024, 1025, 48 N.Y.S.3d 234 ; see Aurora Loan Servs., LLC v. Dimura, 104 A.D.3d 796, 796–797, 962 N.Y.S.2d 304 ; Lucido v. Mancuso, 49 A.D.3d 220, 226–227, 851 N.Y.S.2d 238 ).
"No evidentiary showing of merit is required under CPLR 3025(b)" ( Lucido v. Mancuso, 49 A.D.3d at 229, 851 N.Y.S.2d 238 ; see Clarke v. Acadia–Washington Sq. Tower 2, LLC, 175 A.D.3d at 1241, 105 N.Y.S.3d 905 ). Rather, in reviewing a motion for leave to amend a complaint, "[t]he court need only determine whether the proposed amendment is ‘palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit" ( Lucido v. Mancuso, 49 A.D.3d at 229, 851 N.Y.S.2d 238 ; see Carter v. Nouveau Indus., Inc., 187 A.D.3d at 704, 131 N.Y.S.3d 687 ).
Here, the defendants sought leave to amend their answer to include a new affirmative defense based on res judicata and collateral estoppel. The doctrine of res judicata, or claim preclusion, "holds that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" ( Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 ; see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647 ; O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ; Ott v. Barash, 109 A.D.2d 254, 262, 491 N.Y.S.2d 661 ). "Collateral estoppel, or issue preclusion, [is] a narrower species of res judicata" ( Jacob Marion, LLC v. Jones, 168 A.D.3d 1043, 1044, 93 N.Y.S.3d 120 ; see Carter v. Nouveau Indus., Inc., 187 A.D.3d 705, 706, 130 N.Y.S.3d 394 ). Collateral estoppel "permits in certain situations the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided" ( Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d at 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 ; see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ). "It is evident that a general prerequisite to invocation of either res judicata or collateral estoppel is the existence of a final judgment, i.e., a final judicial determination which necessarily decided the very cause of action or issue that a party now seeks to litigate in a subsequent action or proceeding" ( Ott v. Barash, 109 A.D.2d at 262, 491 N.Y.S.2d 661 ; see Begelman v. Begelman, 170 A.D.2d 562, 563, 566 N.Y.S.2d 337 ).
Here, the proposed new affirmative defense did not include any allegation of a "previous judgment" ( Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d at 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 ), and it failed to adequately allege that there was a final determination on the merits in some prior action (see Carter v. Nouveau Indus., Inc., 187 A.D.3d at 706–707, 130 N.Y.S.3d 394 ; Rudovic v. Rudovic, 131 A.D.3d 1225, 1227, 16 N.Y.S.3d 856 ; Corsa v. Pacific Indem. Co., 52 A.D.3d 450, 859 N.Y.S.2d 703 ; Towne v. Asadourian, 277 A.D.2d 800, 801, 722 N.Y.S.2d 187 ; Gallo v. Teplitz Tri–State Recycling, Inc., 254 A.D.2d 253, 254, 678 N.Y.S.2d 140 ; Berkshire Nursing Ctr., Inc. v. Len Realty Co., 168 A.D.2d 475, 476, 562 N.Y.S.2d 716 ; Ott v. Barash, 109 A.D.2d at 262, 491 N.Y.S.2d 661 ). The allegations in the new proposed affirmative defense were "palpably insufficient" to state a defense based on res judicata or collateral estoppel ( Lucido v. Mancuso, 49 A.D.3d at 229, 851 N.Y.S.2d 238 [internal quotation marks omitted]; see Gamer v. Ross, 49 A.D.3d 598, 601, 854 N.Y.S.2d 160 ).
The defendants’ contention that the Supreme Court misapplied the law of the case doctrine is without merit. It would have been unnecessary to grant leave to amend the defendants’ answer to interpose the law of the case doctrine (see generally Bloom v. Lugli, 102 A.D.3d 715, 718, 958 N.Y.S.2d 184 ), as that doctrine constitutes a "rule of practice" rather than an affirmative defense ( Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 ; see Matter of Part 60 RMBS Put–Back Litig., 195 A.D.3d 40, 47–48, 146 N.Y.S.3d 109 ; Ramanathan v. Aharon, 109 A.D.3d 529, 530, 970 N.Y.S.2d 574 ).
Under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of the defendants’ motion which was for leave to amend their answer (see generally Gamer v. Ross, 49 A.D.3d at 601, 854 N.Y.S.2d 160 ).
BARROS, J.P., BRATHWAITE NELSON, MILLER and ZAYAS, JJ., concur.