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 ; Friedman v State of New York, 67 NY2d 271 ), 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
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