New York State Court of Claims

New York State Court of Claims

DAVIES v. THE STATE OF NEW YORK, #2009-029-024, Claim No. 114834, Motion No. M-76309


Motion for permission to amend answer to include defense of qualified immunity (in a highway negligence claim) granted.

Case Information

1 1.The court has deleted the unnecessary reference to the New York State Dept. of Transportation from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has deleted the unnecessary reference to the New York State Dept. of Transportation from the caption.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
SOBEL, KELLY & SCHLEIER, L.L.C.By: Maria Zouros, Esq.
Third-party defendant’s attorney:

Signature date:
April 16, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


In this highway negligence claim, defendant moves for an order permitting amendment of the answer to add an affirmative defense alleging that the actions of its employees that form the basis of the claim were privileged and subject to qualified immunity. Claimants oppose the motion.

The claim arises out of a May 26, 2006 accident in which claimants’ vehicle was struck by an oncoming vehicle on Route 9A in Mount Pleasant and then came into contact with a guide rail, causing it to overturn. Insofar as it is pertinent to this motion, the claim, filed February 14, 2008, alleges that defendant was negligent in the design and construction of the guide rail.

In support of the motion, defendant submits that, on November 10, 2008, it was served with claimants’ expert witness disclosure stating that the expert will testify that a different type of guide rail should have been installed at the subject location (Exhibit C). Defendant argues that such highway planning decisions are subject to a qualified immunity (see Weiss v Fote, 7 NY2d 579 [1960]; Friedman v State of New York, 67 NY2d 271 [1986]), notes that disclosure is not yet complete and that a note of issue has not been filed, and maintains that claimants would not suffer any prejudice should the motion be granted.

Defendant does not explain why the defense was not asserted in the answer from the beginning or why a motion to amend was not made sooner. From the beginning, the claim asserted State negligence in the design and construction of the guide rail. Given the settled state of the law in this field based on Weiss, Friedman, and their progeny, it should have been clear from the outset that qualified immunity would likely be an issue in this case. For the same reason, claimants cannot now claim surprise that qualified immunity is a potential issue, given the allegations of the claim.

“Motions for leave to amend pleadings are to be liberally granted absent prejudice or surprise resulting from the delay” (Glaser v County of Orange, 20 AD3d 506 [2d Dept 2005]). “The law is clear that leave to amend a pleading should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice or surprise directly results from delay in seeking such amendment” (Barnes v County of Nassau, 108 AD2d 50, 52 [2d Dept 1985]).

Here, the proposed amendment is not palpably improper or legally insufficient and, since disclosure is not yet complete, no prejudice will result from defendant’s delay in asserting the defense. The court will extend claimants’ note of issue deadline to November 15, 2009 to allow for any additional disclosure proceedings that may be necessitated by defendant’s belated assertion of the qualified immunity defense.

Although defendant set forth the text of the proposed defense in paragraph 12 of counsel’s affirmation, it was missing from the proposed amended answer submitted as Exhibit D, a mistake that needs to be rectified.

In accordance with the foregoing, defendant is directed to serve and file its amended answer, to include the language set forth in paragraph 12 of counsel’s affirmation, within 20 days of the filing date of this decision and order.

April 16, 2009
White Plains, New York

Judge of the Court of Claims

Papers submitted;

Notice of Motion, Affirmation and Exhibits

Affirmation in Opposition

Reply Affirmation