New York State Court of Claims

New York State Court of Claims

DERUSHA v. STATE OF NEW YORK, #2000-011-526, Claim No. 101207, Motion No. M-61222


Defendant has moved for leave to amend the answer in this action which arose when Claimant's decedent fell from the top of the Conklingville Dam while fishing.

Case Information

IN THE MATTER OF THE CLAIMS OF TERRY DERUSHA, as Administratrix of the Estate of ALBERT DERUSHA, III, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Thomas J. McNamara
Claimant's attorney:
E. STEWART JONES, ESQ(David J. Taffany, Esq., of counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERA(Dennis M. Acton, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
May 15, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved for leave to amend the answer in this action which arose when Claimant's decedent fell from the top of the Conklingville Dam while fishing. The proposed amended answer includes as affirmative defenses the provisions of General Obligations Law §9-103 and Environmental Conservation Law §15-2303 as well as assumption of the risk.

The claim was served on October 6, 1999 and the answer was provided on November 12, 1999. Thereafter disclosure proceeded with Claimant providing a bill of particulars and a response to a combined demand. Claimant has also served demands upon Defendant which have been responded to. On January 10, 2000, Defendant requested of Claimant that a stipulation be entered consenting to amendment of the answer. On January 31, 2000, Defendant was informed that Claimant would not stipulate to amendment of the answer. This motion followed.

Leave to amend a pleading should be freely given in the absence of prejudice or surprise resulting directly from the delay (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). Delay alone, however, does not warrant a denial of a motion for leave to amend unless such delay is coupled with substantial prejudice to the nonmoving party (Seaman Corp. v Binghamton Savings Bank, 243 AD2d 1027). In this context, prejudice means the loss of a special right, a change in position, or significant trouble or expense that could have been avoided had the original pleading contained the proposed amendment (Seaman Corp. v Binghamton Savings Bank, supra).

Claimant contends that meaningful discovery and preparation have occurred and that additional discovery and increased expenses will result if the amendment is permitted. Although increased expense and additional discovery will no doubt result, there is no allegation that these items could have been avoided if the proposed affirmative defenses had been pleaded in the original answer. In addition, Claimant has not alleged a change in position or loss of a special right. Accordingly, the motion is granted and Defendant is directed to serve and file the amended answer within thirty days of service upon it of a file-stamped copy of this order.

May 15, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion dated February 8, 2000.
2. Affidavit of Dennis M. Acton, Esq., sworn to the 8th day of February, 2000 with exhibits annexed.
3. Affidavit in Opposition sworn to the 7th day of March, 1999 (2000) with exhibits annexed.
4. Memorandum of Law dated March 7, 2000.