New York State Court of Claims

New York State Court of Claims

VALENTI, P. And M. V. STATE OF NEW YORK, #2007-039-036, Claim No. 109524, Motion No. M-73286


Synopsis


Defendant’s motion to amend answer to include affirmative defense of set off pursuant to General Obligations Law § 15-108 granted. Defendant offered sufficient proof to show that the parties settled a companion action against the Village of Coxsackie, and claimants did not demonstrate any prejudice as a result of defendant’s delay in bringing the motion or if the amendment is allowed.

Case Information

UID:
2007-039-036
Claimant(s):
PHILIP VALENTI, JR. and MICHELE VALENTI
Claimant short name:
VALENTI, P. and M.
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109524
Motion number(s):
M-73286
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
The Scagnelli Law Firm, P.C.By: Eric R. Gee, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen J. MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

During August 2002, Claimant Philip Valenti, Jr. sustained injuries while attempting to dock his boat at the Village of Coxsackie docking area when he fell into the water and punctured his right leg on a submerged object. Issue was joined, and in 2006 claimants settled a companion Supreme Court action with the Village of Coxsackie for the amount of $35,000.00. In March 2007, at a deposition attended by claimants’ counsel, defendant’s counsel indicated on the record that claimants’ settlement with the Village of Coxsackie had come to his attention and that he would seek to amend the answer to assert the affirmative defense of set off pursuant to General Obligations Law § 15-108. Defense counsel further requested claimants’ consent to amend the answer.

By letter dated March 28, 2007, defendant’s counsel served a copy of the amended answer on claimants, together with a request that claimants’ counsel sign a stipulation permitting defendant to amend its answer. On April 2, 2007, defendant filed its amended answer with the Clerk of the Court of Claims. On April 16, 2007, claimants filed a note of issue and certificate of readiness with the Clerk and, by letter of the same date, a copy of the note of issue and certificate of readiness was served on defendant. In his letter, claimants’ counsel indicated that “[a]lthough [he] stated to [defendant’s counsel] that the amendment may not be a problem, after conferring with [his] client, [he] [did] not have the authority to consent to [defendant’s] amendment to the answer.” Defendant now moves the Court for an order vacating the note of issue and granting leave to amend its verified answer.

“As a general rule, leave to amend a pleading ‘rests within the trial court’s discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit’ ” (Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d 987, 988 [2007], quoting Berger v Water Commrs. of Town of Waterford, 296 AD2d 649, 649 [2002]; see also D’Orazio v Mainetti, 39 AD3d 981, 982 [2007]). “In assessing the merit of a proposed amendment, however, the proponent is required only to make an evidentiary showing sufficient to support the proposed claim” (Bast Hatfield, Inc. v Schalmont Cent. School Dist., supra). Additionally, “[a] nonsettling tortfeasor may be permitted to amend his or her answer to assert the defense of the plaintiff’s release of a co-tortfeasor, thereby reducing his or her liability by the equitable share of liability of the settling tortfeasor under General Obligations Law § 15-108 (a), where the plaintiff will not be prejudiced by the amendment” (Launders v Steinberg, 39 AD3d 57, 69 [2007]).

Here, it is undisputed that claimants settled the companion action with the Village of Coxsackie. Accordingly, defendant, as the proponent of the motion, has offered sufficient proof to satisfy its burden with respect to the merit of the proposed amendment. Moreover, claimants have not demonstrated, to the satisfaction of the Court, that they have been prejudiced by the delay in bringing the motion or that they will suffer prejudice if the amendment is allowed. Certainly, it should come as no surprise to claimants that defendant would seek a set off. The Court has considered claimants’ remaining arguments and finds them to be without merit.

Accordingly, it is hereby

ORDERED that M-73286 is granted; and it is further

ORDERED that defendant’s prior service and filing of the amended answer, dated March 28, 2007, shall be deemed effective; and it is further

ORDERED that the note of issue and certificate of readiness, which was filed with the Clerk of the Court of Claims on April 16, 2007, shall be vacated and claimants shall be required to refile the note of issue and certificate of readiness within 20 days from the filing date of this Decision and Order.

September 5, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion dated April 30, 2007;
  2. Affirmation in Support of Motion to Vacate Note of Issue and Seeking Leave to Amend Defendant’s Verified Answer dated April 30, 2007 with exhibits; and
  1. Attorney’s Affirmation in Opposition dated May 9, 2007 with exhibit.