Defendant's motion to amend answer to add 11th affirmative defense granted.
|Claimant short name:||BLOUNT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||HERMANN P. WALZ, ESQ.|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 6, 2018|
|See also (multicaptioned case)|
The claim alleges that on July 8, 2015 claimant was incarcerated and in the custody of defendant at Shawangunk Correctional Facility when he was assaulted by correction officers, causing him to sustain multiple injuries. Defendant moves for permission to amend its answer. Claimant has submitted no papers on the motion.
CPLR 3025 (b) provides in pertinent part that "[a] party may amend his . . . pleading, or supplement it by setting forth additional or subsequent transactions or occurrences . . .". Leave to amend a pleading should be freely given "unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]).
The filed verified answer contains ten affirmative defenses and defendant seeks permission to amend the answer to include an eleventh affirmative defense that asserts that "[t]he State of New York is not responsible for damages, if any, caused by the superseding intervention of persons or causes independent of the State, beyond the State's control, or acting outside the scope of their official duties or employment" (Monjeau Affirmation, ¶ 3; Exhibit C [Proposed Amended Verified Answer, ¶ FOURTEENTH]). Counsel for defendant avers that he "had recently become aware of certain facts and new information in this case which leads [him] to believe that it would be prudent and appropriate to assert the defense that an employee or employees was/were acting beyond the scope of their employment and that such a defense may well be an appropriate and essential affirmative defense in this case" (id., ¶ 4). Defense counsel further avers that he sought to amend the answer prior to conducting depositions to provide claimant with "fair notice . . . to allow all parties to incorporate [the] proposed amendment into their discovery and trial planning" (id.). It appears that the proposed amendment does not lack merit and that claimant would not suffer unfair surprise or prejudice if the amendment were permitted, and claimant has not opposed the motion. Thus, and because leave to amend should be freely granted, defendant may file and served the amended verified answer that is submitted as Exhibit C to the affirmation of AAG Monjeau.
Accordingly, it is
ORDERED, that defendant's motion number M-90573 is GRANTED, and defendant shall, within thirty (30) days of the filing of this decision and order, file and serve its verified amended answer.
April 6, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 128074, filed June 14, 2016;
(2) Verified Answer, filed July 15, 2016;
(3) Notice of Motion, dated June 12, 2017;
(4) Affirmation of Thomas R. Monjeau, AAG, dated June 12, 2017, with Exhibits A-C;
(5) Affidavit of Service of Tara K. Matthews, sworn to June 12, 2017;
(6) "So Ordered" Correspondence of the Honorable W. Brooks DeBow, Judge of the Court of
Claims, dated July 20, 2017;
(7) Correspondence of Nancy Schulman, Principal Law Clerk, dated October 2, 2017;
(8) Correspondence of Thomas R. Monjeau, AAG, dated October 30, 2017;
(9) Email Correspondence of Nancy Schulman, Principal Law Clerk, dated November 3, 2017.