New York State Court of Claims

New York State Court of Claims

PHILLIPS v. THE STATE OF NEW YORK, #2000-010-062, Claim No. 97435, Motion No. M-62065


Synopsis


Defendant's motion for leave to file an amended answer granted.

Case Information

UID:
2000-010-062
Claimant(s):
HAROLD PHILLIPS AND MONIKA E. LINK
Claimant short name:
PHILLIPS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97435
Motion number(s):
M-62065
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
PRONER AND PRONERBy: Tobi R. Salottolo, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant's motion for leave to file an amended answer:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Attorney's Opposing Affirmation and Exhibits........................................................2

Attorney's Reply Affirmation....................................................................................3

Claim No. 97435 was served upon defendant on December 3, 1997 and defendant served its Verified Answer on January 9, 1998 (Defendant's Exs. A, B). On February 1, 1999, a Note of Issue was filed and a trial was scheduled for January 22, 2001 (Claimant's Ex. C). Defendant now seeks to serve an amended answer asserting the affirmative defense that any alleged delay in redesign, reconstruction and maintenance was a discretionary determination which was not unreasonable given the limited available resources and the complexity of the planning and design characteristics.

Leave to amend shall be freely granted unless the proposed amendment is palpably improper or would cause substantial prejudice to the opposing party (CPLR 3025[b]). Defendant does not oppose further discovery regarding this limited issue; accordingly there is an absence of substantial prejudice (see, Berkun v National Health Resources, 255 AD2d 476, Fisher v Braun, 227 AD2d 586).

Accordingly, defendant shall serve and file the amended answer (Defendant's Ex. C) within 10 days of receipt of a file-stamped copy of this Decision and Order and claimant shall, within 30 days of receipt of the amended answer, serve and file discovery demands limited to the newly raised affirmative defenses.


September 20, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims