Defendant's motion for permission to amend its answer to assert two additional affirmative defenses is granted. Claimant did not oppose the motion.
|Claimant(s):||LINDA SINNI, Individually and as Administratrix of the Estate of PAUL R. SINNI, Deceased|
|Claimant short name:||Sinni|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||ALEXANDER & CATALANO, LLC
By: Timothy R. Mandronico, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2010|
|See also (multicaptioned case)|
Defendant brings a motion for permission to amend its answer to assert two additional affirmative defenses. Claimant has not opposed the Defendant's motion.
The claim which was served on August 1, 2007 and filed on August 3, 2007, alleges that on February 16, 2007, Paul R. Sinni was standing near his vehicle at approximately 4:35 p.m., on State Route 38 in the Town of Victory, when Defendant's employee driving a State-owned vehicle collided with Mr. Sinni causing him serious personal injuries which resulted in his death. Linda Sinni was appointed as Administrator of Mr. Sinni's estate on April 30, 2007. Some discovery has been completed in the action, although a note of issue and certificate of readiness has not yet been filed.
Defendant now seeks to amend its Answer pursuant to CPLR 3025 to assert two additional affirmative defenses. Defendant asserts that during the course of discovery it became apparent that the emergency doctrine and lower standard of care set forth in Vehicle and Traffic Law § 1104 may be relevant to this action but were not pled in the Answer as affirmative defenses. Defendant seeks, by this motion, to add as affirmative defenses, (1) that in light of the emergency doctrine, Defendant is not liable to Claimant in negligence; and (2) that Defendant is entitled to qualified immunity under New York Vehicle and Traffic Law § 1104; and (3) to correct some typographical errors. Defendant has attached a copy of its proposed Amended Answer to its motion papers.
It is Defendant's position that the driver of the Department of Correctional Services' vehicle encountered near white-out conditions immediately before the accident which caused Claimant's decedent's injuries, and that the driver was transporting an inmate for medical reasons. Defendant has not specified what actions the driver took that met the conditions for application of the lower standard of care in Vehicle and Traffic Law § 1104 (see Kabir v County of Monroe, 68 AD3d 1628 [4th Dept 2009]).
CPLR 3025 (b) permits a party to amend or supplement his pleadings by leave of court. The statute directs that "[l]eave shall be freely given upon such terms as may be just. . ." Leave should be given where the opposing party is not surprised or prejudiced by the proposed amendment and the proposed amendment appears to be meritorious (see Nastasi v Span, Inc., 8 AD3d 1011, 1013; Paolano v Southside Hosp., 3 AD3d 524, 524).
Where defendant seeks to assert in its defense facts which are known primarily to the party seeking to invoke the emergency doctrine, the defense must be pleaded to avoid surprise (Franco v G. Michael Cab Corp., 71 AD3d 1082 [2nd Dept 2010]; Dawley v McCumber, 45 AD3d 1399 [4th Dept 2007]). Additionally, the privilege of the lower standard of care, pursuant to Vehicle and Traffic Law § 1104, for operating its emergency vehicle in a defined emergency operation, should be raised as an affirmative defense for the same reason (see Culhane v State of New York, 180 Misc 2d 61; but compare McDonald v State of New York, 176 Misc 2d 130).
Since Claimant has not responded to the motion and, thus, raised no objections or issue of prejudice, and the Court finds the affirmative defenses have potential merit, the Court will grant Defendant's motion. Defendant should serve and file the Amended Answer (Exhibit C attached to the motion papers) within 20 days of the date this Decision and Order is filed with the Clerk of the Court.
October 8, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion.
1) Notice of Motion.
2) Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
3) No response was filed by the Claimant.