New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2004-034-566, Claim No. 103754, Motion No. M-68481


Defendant's motion to amend the answer to include two additional affirmative defenses is granted. Claimant is not prejudiced by amendments as counsel for Claimant is also counsel for companion action and has been defending that matter on those grounds.

Case Information

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):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 16, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendants have moved for leave to amend their answer pursuant to CPLR 3025 (b). The Court hereby grants the motion.

The Court has considered the following papers in connection with this motion:
1. Verified Claim, verified January 23, 2001, filed January 30, 2001;
2. Answer, verified February 20, 2001, filed February 21, 2001;
3. Notice of Motion, dated May 18, 2004, filed May 21, 2004;

4. Affidavit of Richard B. Friedfertig, sworn to May 19, 2004, in support of the motion, with attached exhibits;

5. Affirmation of Michael J. Grace, dated June 9, 2004, filed June 14, 2004, in opposition to the motion;
6. Reply submission of Richard B. Friedfertig, dated July 1, 2004.

This claim arose as the result of a one-car accident that occurred on October 17, 1999 on the eastbound New York State Thruway, Interstate 90, in the Town of Newstead, near the Millgrove Road overpass. Claimant Jessica Gordon was one of five occupants in a vehicle owned by a fellow passenger, Shannon Slavin, and driven by Amy Vassallo. The five young women were all students at Rochester Institute of Technology and were returning to Rochester from Canada at the time of the accident. It is alleged that they had been at a late-night dance party or "rave" in Toronto, where various members of the group had been drinking and using the drug "Ecstasy" before starting their return trip early that morning without having slept. The accident occurred during a heavy rain at 7:40 a.m., when the vehicle allegedly hydroplaned off the south shoulder of the road, slid onto a guide rail, overturned and struck a concrete Jersey barrier. As a result claimant sustained injuries that have rendered her a quadriplegic. Another passenger, Rachel Miller, suffered fatal injuries that are the subject of a companion claim (Miller v State of New York and The New York State Thruway Authority, Claim No. 103869), also assigned to this Court. The two claims have been pursued concurrently, with Mr. Grace representing the claimants in both actions. Mr. Friedfertig represents the defendants in these actions.

Both claims alleged, inter alia, that defendants were negligent in the design and maintenance of the roadway; in improperly installing a guide rail with a "Type II End Assembly" and Jersey barrier; in allowing the formation of and failing to repair ruts in the wheel paths of the roadway, thus creating a hazard for hydroplaning; and in failing to follow accepted traffic rules, regulations and industry standards in the design, installation and maintenance of the roadway. The answer in the Miller claim asserted numerous affirmative defenses, including comparative fault and qualified immunity for the decisions of the Thruway Authority and its employees. Although the answer in this claim also asserted numerous affirmative defenses, defendants did not set forth comparative fault or qualified immunity as defenses in that pleading.

We now have a motion before the Court for leave to amend the answer to add comparative fault and qualified immunity as affirmative defenses. Claimant opposes the motion, asserting lateness, surprise and prejudice to the prosecution of this action.

Leave to amend is to be freely given (CPLR 3025). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine." (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 3025:5, p 477). Critical to the question of prejudice in this case is the fact that the same attorney represents the claimants in both actions, and that the affirmative defenses sought to be added in this claim have been raised in the answer to the companion claim. Moreover, Ms. Gordon and Ms. Miller were both passengers in the same vehicle, and participated in the same general activities prior to the accident. For those reasons counsel would not suffer prejudice or surprise in the application of those same principles to this claim.

Lastly, the Court notes that both proposed defenses are of colorable merit. Governmental immunity for planning decisions is a well established theory of defense in claims involving highway design and construction (see Weiss v Fote, 7 NY2d 579 [1960]). So also, passengers in an automobile possess an independent duty to exercise reasonable care for their own safety (see Nelson v Nygren, 259 NY 71 [1932]; Posner v Hendler, 302 AD2d 509 [2003]; Stewart v Taylor, 193 AD2d 1078 [1993]).

Based upon the above, it is

ORDERED, that defendants' motion for leave to amend the answer is granted. The amended answer is to be filed and served within 20 days of the date of the filing hereof.

September 16, 2004
Buffalo, New York

Judge of the Court of Claims