The following papers were read on the claimant's motion to amend the claim:
Notice of Motion, Affirmation and Exhibit annexed, Memorandum of Law;
Affirmation in Opposition; Reply Affirmation.
The claimant has moved to amend the claim, apparently in response to the
defendant's Affirmative Defense that the claim is covered by Article 16 of the
CPLR. The proposed amended claim (annexed as an Exhibit to the claimant's
submission), alleges an exception set forth in CPLR 1602(2)(iv), that the
defendant's alleged liability arises from a non delegable duty.
The claim seeks to hold the defendant liable for the conduct of Court Officers
which allegedly resulted in an assault on the claimant by "inmates" in a court
holding cell. The allegation in the amended claim, if proven, would preclude
limitation of the defendant's liability to its equitable share of fault and
permit recovery from it of the full amount of any judgment. The defendant
opposes the motion on the ground that it is untimely, having been served nearly
two years after the claim was filed.
In Morales v County of Nassau, 94 NY2d 218, 224, the Court of Appeals
held that an Article 16 exemption which was not ever pleaded, as required by
CPLR 1603, may not be raised on appeal. See, also, Cole v Mandell Food
Stores, Inc., 93 NY2d 34, 40. The Court in Morales suggested,
however, that amendment would have been permissible at the conclusion of the
trial, when the defendant requested an apportionment charge. See,
Mastroianni v County of Suffolk, 184 Misc 2d 125, 128.
CPLR 3025(b) permits amendment of a pleading, with the Court's permission, at
any time. "If there is no prejudice to the other side, leave to amend must be
freely given." Siegel, NY Prac §237, at 378 (3d ed). Under the
circumstances herein, where a Note of Issue has yet to be filed, amendment of
the claim will not result in any prejudice to the defendant, nor has the
defendant suggested that it would.
The claimant's motion is granted. The claimant shall serve and file an
amended claim, in the form annexed as Exhibit 1 to the Notice of Motion, within
30 days of the date of the filing of this Order.