New York State Court of Claims

New York State Court of Claims

COLON v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2002-013-026, Claim No. 103357, Motion No. M-64889


Where the State made no effort to obtain a physical examination of Claimants or to assert counterclaims against them until after notes of issue were filed, its motion to strike the notes of issue and to amend its answers is denied.

Case Information

STEVEN A. COLON The motion papers reference a third claim, Claim No. 104142. That claim was consolidated with Claim No. 103357 by Stipulation and Order of this Court filed July 16, 2001.
Claimant short name:
Footnote (claimant name) :
The motion papers reference a third claim, Claim No. 104142. That claim was consolidated with Claim No. 103357 by Stipulation and Order of this Court filed July 16, 2001.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On May 15, 2002, the following papers were read on Defendant's motion for an order striking the notes of issue and certificates of readiness filed in these actions and permitting amendment of its answers:
  1. Notice of Motion and Supporting Affirmation of Reynolds E. Hahn, Esq. ("Hahn Affirmation")
  1. Affirmation in Opposition of John J. Flaherty, Esq., counsel for Claimant Steven A. Colon ("Flaherty Affirmation")
  1. Affidavit in Opposition of Robert D. Steinhaus, Esq., counsel for Claimant Lynda L. Dayton ("Steinhaus Affidavit")
  1. Reply Affirmation of Reynolds E. Hahn, Esq. ("Hahn Reply Affirmation")
5. Letter of Reynolds E. Hahn, Esq. dated April 11, 2002 ("Hahn Letter #1")

6. Letter of John J. Flaherty, Esq., dated May 8, 2002 ("Flaherty Letter")

7. Letter of Reynolds E. Hahn, Esq., dated May 9, 2002 ("Hahn Letter #2")

  1. Filed Papers: Claims; Answers; Amended Claim and Amended Answer (Claim No. 103741)
These actions arise out of a May 21, 1999 motor vehicle accident that occurred at the intersection of Eagle Harbor and Albion Harbor Road in Albion, New York. Claimant, Steven A. Colon, was driving a vehicle in which the other Claimants, Lynda Dayton and infant Clarence L. Gray, Jr., were passengers, and that vehicle was struck by one driven by an employee of the New York State Thruway Authority as the latter was in the process of making a left-hand turn. Scheduling orders were issued on June 20, 2001, bifurcating the trial of both actions and directing the parties to complete all discovery and to file notes of issue with respect to liability on or before December 3, 2001. These orders further provided that all Article 31 demands for discovery, except those made under CPLR 3101(d), were to be completed by August 30, 2001 and "Defendant will conduct a physical examination of Claimant within 90 days after the filing of the trial decision determining liability, if any." Subsequently, in October 2001, this scheduling order was amended to extend the time during which the parties could conduct depositions and adjourning the date for filing the notes of issue to March 31, 2002. The note of issue in Claim No. 103357 was filed on March 11, 2002, and the note of issue in Claim No. 103741 was filed on March 18, 2002, as amended.

Defendant has now moved to strike these notes of issue on the ground that it has not had an opportunity to conduct physical examinations of Claimants, examinations that are necessary because, according to Defendant, it must be established as a threshold matter whether Claimants have sustained a "serious injury" as defined by Insurance Law §5102(d). In its answer to the claim filed in Claim No. 103357[1], Defendant alleged as an affirmative defense that Claimant Colon had not suffered a "serious injury," and, as part of this motion, permission is sought to amend the answer in Claim No. 103741 to make the same allegations with respect to the other Claimant. Both attorneys opposing the motion object to this matter being raised at this late date, particularly when the need for such an examination, or indeed the need to decide the issue in the liability phase, was never mentioned previously. Further, it should be noted that Defendant raised no objection to the June 20, 2001 scheduling orders, which provided that physical examinations of the Claimants would occur only after the decision on liability; never sought to amend or alter that portion of the order; and never served Claimants with a demand for physical examinations.

If Defendant is correct and the matter must be addressed during the liability phase of trial, a strong argument could be made that, by this consistent failure to investigate or raise the issue beyond its answer, Defendant has conceded the issue of serious injury (see, Simone v City of Niagara Falls, 281 AD2d 923). In my opinion, the issue does not have to be decided at this juncture, however, and I do not consider Defendant to have made any concessions in this regard.

In order for a party injured in an automobile accident to recover from the tortfeasor who caused the accident, it must be established at some point that the injuries he or she suffered were "serious" within the meaning of the No-Fault Insurance Law provision. Relevant case law reveals that, as the Fourth Department has observed, "[s]erious injury has been viewed as an element of liability or an element of damages" at different times and by different courts (Simone v City of Niagara Falls, supra). While there can be no final determination of liability until serious injury has been established (DePetres v Kaiser, 244 AD2d 851), the issue is entirely separate from the question of negligence (id). Cases holding that "serious injury" must necessarily be decided as part of liability have dealt not with plenary trials but with situations in which there have been summary judgment rulings or default judgments on the issue of liability (Maldonado v DePalo, 277 AD2d 21; DePetres v Kaiser, supra; Zafir v Turbo Trans. Corp. 190 Misc 2d 292; cf., Zecca v Riccardelli, ____ AD2d _____, 2001 WL 1851771 [2d Dept]. Where, however, the issue has not been decided prior to trial and trial of the action has been bifurcated, courts have consistently ruled that evidence relating to "serious injury" is most properly heard during the damages portion of the trial (Perez v State of New York, 215 AD2d 740, 741-742; see also, Kelley v Balasco, 226 AD2d 880; Gallera v Parra, 2002 WL 1058570 [NYC Civ Ct]; Philip v DiTomasso, 2001 WL 940223 [Sup Ct, Richmond Co.]. Consequently, in the instant cases, there is no need for the notes of issue to be stricken.

Defendant has also requested permission to amend its answer in Claim No. 103357 to assert a counterclaim against Claimant Steven A. Colon in order to recover from him "his proportionate share of any judgment in favor of claimants Dayton and Gray" and, similarly, to amend its answer in Claim No. 103741 to assert a counterclaim against Claimant Gray for his proportionate share of any judgment in favor of Claimant Dayton. Claimant Colon was the driver of the vehicle, and it appears from the submissions made in support of this motion that Claimant Gray, a teenager, may have struck Claimant Dayton with his body because he was not wearing his seat belt (Hahn Affirmation, ¶20). Claimant Colon opposes this motion on the ground that any such counterclaim would be "redundant" because the State has already raised "Claimant's culpable conduct" as an affirmative defense. That defense, however, could lead only to a proportional reduction of any award made to Colon himself, while a successful counterclaim would make him liable, in some measure, for the injuries of the other parties.

As a general proposition, permission to amend pleadings is to be "freely given" (CPLR 3025[b]). An amendment to assert a counterclaim, however, initiates a separate lawsuit, placing entirely new burdens of proof on the parties. As such, it must satisfy the applicable statute of limitations (Rivera v Viera, 246 AD2d 432), and a counterclaim cannot "relate back under the amended pleading provision where defendant's answer contained only general denials" (Barsuk, Inc. v Niagara Mohawk Power Corp., 281 AD2d 875, 876, quoting Coleman, Grasso & Zasada Appraisals v Coleman, 246 AD2d 893, lv dismissed 91 NY2d 1002).

Amendment to permit the assertion of a counterclaim is most appropriate in the early stages so that the opposing party will not be prejudiced by being confronted with a separate action which it must defend (Greenstone Roberts Adv. v Hodes Adv., 260 AD2d 601; Zeide v National Cas. Co., 187 AD2d 576; Lyall v Grayco Builders, 180 AD2d 7). A party that seeks to assert a counterclaim at some later point, after discovery is well underway, should be prepared to show that the necessary information underlying his or her claim was not known at the time the original answer was filed (Paragon Cable Manhattan v P & S 95th Street Associates, 240 AD2d 255; Barsuk, Inc. v Niagara Mohawk Power Corp., 281 AD2d 875, supra) and, if necessary, to provide an acceptable excuse for any significant delay after the necessary facts were learned (Mathiesen v Mead, 168 AD2d 736).

In the instant claims, the essential facts relating to the automobile accident have been known from the beginning, and all Claimants were deposed in late 2001. Yet Defendant waited, for reasons which remain entirely unexplained, until after the notes of issue were filed to assert these counterclaims for the first time. Granting Defendant's request would prejudice the opposing parties. It is entirely possible that the Claimants might have adopted a different strategy during the discovery phase if the proposed counterclaims had been part of the action, and it is certain that the attorney most familiar with the claims of Claimant Dayton would have to withdraw from prosecuting those claims because the different posture of the case would have created a direct conflict of interest for him. Defendant simply waited too long to attempt to pursue this course of action.

For the reasons set forth above, Defendant's motion is denied in its entirety.

June 14, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]The affirmative defense appeared in the answer to Claim No. 104142, which has since been consolidated with Claim No. 103357.