| Dawley v McCumber |
| 2007 NY Slip Op 08653 [45 AD3d 1399] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Melissa J. Dawley, Individually and as Administratrix of the Estateof Scott A. Dawley, Deceased, Respondent, v Robert McCumber, Appellant, and Roger M.Decker, Jr., et al., Respondents. (Action No. 1.) Roger M. Decker, Jr.,Respondent, v Robert McCumber et al., Defendants. (Action No.2.) |
—[*1] Michael A. Castle, Herkimer, for plaintiff-respondent Melissa J. Dawley. Brindisi, Murad, Brindisi & Pearlman, LLP, Utica (Anthony J. Brindisi of counsel), forplaintiff-respondent Roger M. Decker, Jr. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered August 4, 2006 in a wrongful death action. The order denied the motion of defendantRobert McCumber for leave to amend his answer in action No. 1 to assert an affirmative defenseof medical emergency.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced action No. 1 seeking damages for the wrongful death ofher husband (decedent), who was killed in a motor vehicle accident. The accident occurred whena vehicle operated by Robert McCumber (defendant), a defendant in action Nos. 1 [*2]and 2, crossed over into the opposite lane of traffic and collidedwith a truck that in turn collided with the vehicle operated by decedent. The two actionssubsequently were joined for trial.
Contrary to the contention of defendant, who was 87 years of age at the time of the accident,Supreme Court did not abuse its discretion in denying his motion for leave to amend his answerin action No. 1 to add an affirmative defense of medical emergency. The motion was made morethan one year after defendant's answer was served, and the plaintiff in action No. 1 establishedthat she "would suffer significant prejudice" if the court granted defendant's motion(Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). "Prejudice hasbeen defined as a special right lost in the interim, a change in position, or significant trouble orexpense that could have been avoided had the original pleading contained the proposedamendment" (Ward v City of Schenectady, 204 AD2d 779, 781 [1994]). The recordestablishes that, before seeking leave to amend his answer in action No. 1, defendant refused tobe examined by the other parties and asserted that he would not place his medical condition atissue. The record further establishes, however, that defendant was "suffering from dementia" andthus was unavailable for examination at the time of his motion. "Where the facts relating to theexistence of an emergency are presumptively known only to the party seeking to invoke thedoctrine, it must be pleaded as an affirmative defense lest the adverse party be taken by surprise"(Bello v Transit Auth. of N.Y. City,12 AD3d 58, 61 [2004]). We note in addition that defendant failed to establish a reasonableexcuse for the year-long delay in making the motion (see Jablonski v County of Erie, 286AD2d 927, 928 [2001]). Defendant indicated that he was relying on his own medical reports andpolice reports, but those reports were available at the time he served his answer. Thus, "all thefacts which might form the basis of the affirmative defense[ ] . . . were or shouldhave been known" to defendant by the time he served his answer (James-Smith vRottenberg, 32 AD2d 792 [1969]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey andPine, JJ.