New York State Court of Claims

New York State Court of Claims

BERGMAN v. STATE OF NEW YORK, #2008-040-043, Claim No. 111032, Motion No. M-74877


State’s motion to amend answer pursuant to CPLR 3025(b) to assert affirmative defense that Claimant’s remedy is limited to Workers’ Compensation Law benefits is granted.

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:
Michael A. Barnett, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Todd A. Schall, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s motion to serve and file an Amended Answer to assert an additional affirmative defense that Claimant’s sole remedy is limited to the benefits of the New York State Workers’ Compensation Law is granted.

The Claim, which was filed with the Clerk of the Court on June 20, 2005 and served upon the Attorney General on August 11, 2005 (see Ex. A attached to State’s motion), alleges that on December 28, 2004 Claimant slipped and fell on the sidewalk east of the south side entrance to Building 102 located at Pilgrim Psychiatric Center in West Brentwood, New York (hereinafter Pilgrim) as a result of the State’s negligence in its ownership, operation and maintenance of the sidewalk.

Defendant’s Verified Answer was served on September 20, 2005 and filed with the Clerk of the Court on September 23, 2005. Discovery has been completed and Claimant filed a Note of Issue and Certificate of Readiness on April 7, 2008.

CPLR 3025(b) provides that leave to amend shall be freely given upon such terms as are just. The phrase has been interpreted to mean that, in the absence of prejudice or unfair advantage, leave to amend should be given freely (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Nasuf Constr. Corp. v State of New York, 185 AD2d 305 [2nd Dept 1992]). “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 Laws of NY, Book 7B, CPLR 3025:5; Arcuri v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]).

Prejudice to the nonmoving party is shown where that party is “hindered in the preparation of its case or has been prevented from taking some measure in support of its position” (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]). The Affirmation in Opposition to this motion submitted by Claimant’s counsel has not alleged or proved that Claimant would suffer prejudice as a result of the proposed amendment.

Moreover, the State has made a showing that the amendment may be meritorious. In Thompson v Grumman Aerospace Corp. (78 NY2d 553, 557-558 [1991]), the Court of Appeals stated:

“[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits ... A special employee is described as one who is transferred for a limited time of whatever duration to the service of another ... General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer ... We recognize that a person’s categorization as a special employee is usually a question of fact ... and generally no one [factor] is decisive ... While not determinative, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee’s work” (citations omitted).

The deposition transcript attached to Defendant’s motion papers offers evidence that Claimant’s work location was, for a period of time prior to the accident, at Pilgrim. She stated that she was employed by Mt. Sinai Medical Center but worked full time at Pilgrim (Ex. F attached to State’s motion papers, Deposition transcript of Claimant, pp. 9-11).

In Shine v Duncan Petroleum Transport, Inc. (60 NY2d 22, 27 [1983]), the Court of Appeals stated that “leave to amend pleadings to include [the defense of workers’ compensation] should be freely granted, even in midtrial, in the absence of operative prejudice.” The trial court has discretion to deny a motion to amend the answer to assert a workers’ compensation defense where the Claimant has “demonstrated prejudice resulting from defendant’s delay. [Claimant] was required to establish prejudice accruing to him as a consequence of defendant’s failure to timely assert the defense, and to include a showing that the prejudice could have been avoided if the defense had been timely asserted” (Caceras v Zorbas, 74 NY2d 884, 885 [1989]). As noted above, Claimant has made no such demonstration of prejudice.

In this instance, Defendant has moved to amend its Answer without also requesting a stay of the Claim. Thus, the Claim shall proceed in the normal course and the availability of the Workers’ Compensation Law defense will be resolved as part of the trial of the Claim (Shine v Duncan Petroleum Transport, Inc., 60 NY2d 22, supra at 27*; see Murray v City of New York, 43 NY2d 400 [1977]; PJI 2:215[I][C]).

Based upon the foregoing, Defendant’s motion to amend its answer to assert the exclusive remedy of the Workers’ Compensation Law is granted. Defendant shall serve and file the Amended Answer within twenty (20) days of the date of filing of this Decision and Order.

July 11, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on the State’s motion:

Papers Numbered

Notice of Motion, Affirmation in
Support and Exhibits Attached 1

Affirmation in Opposition 2

Reply Affirmation 3

Filed papers: Claim, Answer