Tomasino v American Tobacco Co.

2008 NY Slip Op 09781 [57 AD3d 652]

December 9, 2008

Appellate Division, Second Department

As corrected through Wednesday, February 11, 2009

mJustin D. Tomasino, Respondent, v American TobaccoCompany et al., Defendants, and Lorillard Tobacco Company et al.,Appellants.

—[*1]Greenberg & Traurig, LLP, New York, N.Y. (Robert J. Kirshenberg, Alan Mansfield, andIsrael Rubin of counsel), for Lorillard Tobacco Company; Winston & Strawn, LLP, New York, N.Y.(Thomas J. Quigley, Jennifer L. Malin, and Kara L. Gorycki of counsel), for appellant Philip MorrisIncorporated and the Council for Tobacco Research-USA, Inc; Jones Day, New York, N.Y. (HaroldK. Gordon and Daniel L. Russo of counsel), for appellant R.J. Reynolds Tobacco Company;Chadbourne & Parke, LLP, New York, N.Y. (David L. Wallace of counsel), for appellant Brown &Williamson Tobacco Corporation; Seward & Kissel, LLP, New York, N.Y. (Jack Yoskowitz andWalter Naeder of counsel), for appellant the Tobacco Institute Inc.; Kasowitz, Benson, Torres &Friedman LLP, New York, N.Y. (Julie R. Fischer of counsel), for appellants Liggett Group, Inc.,Brooke Group, Ltd., and Liggett & Myers Tobacco Company (one brief filed).

Finz & Finz, P.C., Jericho, N.Y. (Jay L. Feigenbaum of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, etc., the defendants LorillardTobacco Company, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown &Williamson Tobacco Corporation, the Tobacco Institute, Inc., and the Council for TobaccoResearch-USA, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court,Nassau County (Martin, J.), entered September 24, 2007, as denied that branch of their motion whichwas for leave to amend their respective answers to assert the defense of res judicata with respect to theplaintiff's punitive damages claims, and the defendants Liggett Group Inc., Brooke Group, Ltd., andLiggett & Myers Tobacco Company, appeal, as limited by their brief, from so much of the same orderas denied that branch of their separate motion which was for leave to amend [*2]their answer to assert the defense of res judicata with respect to theplaintiff's punitive damages claims.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branchesof the appellants' motions which were for leave to amend their respective answers to assert the defenseof res judicata with respect to the plaintiff's punitive damages claims are granted, and the proposedamended answers are deemed served.

Leave to amend an answer to assert an affirmative defense generally should be granted where theproposed amendment is neither palpably insufficient nor patently devoid of merit, and there is noevidence that it would prejudice or surprise the opposing party (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d617 [2006]; Public Adm'r of KingsCounty v Hossain Constr. Corp., 27 AD3d 714 [2006]).

The Supreme Court denied those branches of the appellants' motions which were for leave toamend their respective answers to assert the affirmative defense of res judicata with respect to theplaintiff's punitive damages claims, upon concluding that the defense is patently devoid of merit.

Contrary to the Supreme Court's conclusion, the proposed defense of res judicata in this case isneither palpably insufficient nor patently devoid of merit (see Fabiano v Philip Morris Inc., 54 AD3d 146 [2008]). Furthermore,the plaintiff failed to demonstrate that he would be prejudiced or surprised by the proposedamendment.

Accordingly, the Supreme Court should have granted those branches of the appellants' separatemotions which were for leave to amend their respective answers to assert the defense of res judicatawith respect to the plaintiff's punitive damages claims. Mastro, J.P., Florio, Eng and Chambers, JJ.,concur. [See 2007 NY Slip Op 33001(U).]