New York State Court of Claims

New York State Court of Claims

RUSHO v. STATE OF NEW YORK, #2007-042-509, Claim No. 112572, Motion No. M-73087


Synopsis


Defendant brought this motion pursuant to CPLR Rule 3025 (b) for leave to amend its answer to assert the affirmative defense of Vehicle and Traffic Law Section 1104. Claimant has no objection to the defendant’s motion. Defendant’s motion is granted.

Case Information

UID:
2007-042-509
Claimant(s):
JULIE L. RUSHO AND WAYNE K. RUSHO
Claimant short name:
RUSHO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112572
Motion number(s):
M-73087
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ALEXANDER & CATALANO, LLCBy: PETER J. ADDONIZIO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
May 1, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brought on this motion pursuant to CPLR Rule 3025 (b) for leave to amend its answer to assert the affirmative defense of Vehicle and Traffic Law Section 1104. The Court has considered the following papers:
  1. Notice of Motion, filed March 21, 2007
  2. Affirmation of Thomas M. Trace, Esq., dated March 21, 2007
  3. Exhibits A - B, annexed to the moving papers
  4. Letter from opposing counsel, Peter J. Addonizio, Esq., dated April 3, 2007
___________________________________________

This matter comes before the court on a motion by defendant, brought pursuant to CPLR Rule 3025 (b), for leave to amend its answer to assert the affirmative defense of Vehicle and Traffic Law Section 1104. Claimants’ counsel has notified the court, by letter dated April 3, 2007, that claimants “will file no objection to the State’s Motion to Amend Answer.”

The underlying claim was received by the Attorney General on July 27, 2006. Defendant interposed an answer on September 1, 2006. The claim seeks damages for personal injuries allegedly sustained by claimants on May 22, 2006 when their vehicle was struck by a State Parole vehicle.

Defendant alleges that further investigation of the accident has revealed that the operator of defendant’s vehicle was engaged in the emergency operation of pursuing a parole absconder at the time the accident occurred. The effect of the proposed amendment to the answer would be to provide an affirmative defense, pursuant to Vehicle and Traffic Law Section 1104, which effectively asserts that what might otherwise be negligent operation of a motor vehicle may be protected operation by an authorized emergency vehicle due to the exigent circumstances at the time.

Inasmuch as CPLR Rule 3025 (b) specifically provides that “leave shall be freely given”, and inasmuch as claimants have no opposition to the requested relief, the motion is granted. Defendant shall serve and file the amended answer within forty-five (45) days of the filing of the Decision and Order herein.


May 1, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims