| Thome v Benchmark Main Tr. Assoc., LLC |
| 2015 NY Slip Op 00997 [125 AD3d 1283] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Jason Thome, Plaintiff, v Benchmark Main TransitAssociates, LLC, et al., Defendants. Christa Construction, LLC, Third-PartyPlaintiff-Respondent, v Industrial Power & Lighting Corp., Third-PartyDefendant-Respondent, and Fisher Concrete, Inc., Third-PartyDefendant-Appellant. |
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Arthur A. Herdzik ofcounsel), for third-party defendant-appellant.
Hiscock & Barclay, LLP, Buffalo (Michael E. Ferdman of counsel), forthird-party plaintiff-respondent.
Feldman Kieffer, LLP, Buffalo (Adam C. Ferrandino of counsel), for third-partydefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.),entered April 10, 2014. The order, among other things, denied in part the motion ofthird-party defendant Fisher Concrete, Inc. for leave to serve a second amendedthird-party answer.
It is hereby ordered that said appeal from the order insofar as it denied the motion topreclude expert testimony is unanimously dismissed, and the order is modified on the lawby granting that part of the motion seeking leave to serve a second amended third-partyanswer to assert the affirmative defense that the settlement among plaintiff,defendant/third-party plaintiff, and third-party defendant Industrial Power &Lighting Corp. was not reasonable, and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for personalinjuries he allegedly sustained when a lift he was operating fell into a hole at aconstruction site. Defendant/third-party plaintiff, Christa Construction, LLC (Christa),commenced a third-party action against third-party defendants, Industrial Power &Lighting Corp. (IPL) and Fisher Concrete, Inc. (Fisher). Supreme Court grantedplaintiff's motion for summary judgment on, inter alia, his Labor Law § 240(1) claim but, on a prior appeal, this Court concluded that there was a triable issue of factwhether plaintiff's actions were the sole proximate cause of his injuries and denied thatpart of the motion (Thome vBenchmark Main Tr. Assoc., LLC, 86 AD3d 938, 939-940 [2011]). Plaintiff,Christa, and IPL later settled the main action and the third-party action with respect toIPL.
Fisher made three separate motions seeking several different forms of relief. In itsfirst motion, Fisher sought partial summary judgment dismissing IPL's cross claims andsummary judgment dismissing Christa's claims for contribution and indemnification. Inits second motion, [*2]Fisher moved for leave to serve asecond amended answer to the third-party complaint, seeking to assert several additionalaffirmative defenses including the affirmative defense that the settlement amongplaintiff, Christa and IPL was not reasonable. In its third motion, Fisher sought an orderprecluding Christa and IPL from introducing testimony from an expert witness. Inaddition, IPL moved for summary judgment dismissing Fisher's cross claims against it.The court granted that part of Fisher's motion for partial summary judgment seekingdismissal of Christa's claim for contribution, but denied the remainder of that motion.The court also granted in part Fisher's motion for leave to serve a second amendedthird-party answer, but denied that part of the motion seeking to assert the affirmativedefense that the settlement among plaintiff, Christa, and IPL was not reasonable.Furthermore, the court denied without prejudice Fisher's motion to preclude experttestimony. Finally, the court granted IPL's motion to dismiss Fisher's cross claims againstIPL. Fisher now appeals.
We note at the outset that we dismiss the appeal insofar as it concerns Fisher'smotion to preclude. In that motion, Fisher sought to preclude Christa and IPL fromcalling an expert to testify that Fisher violated certain provisions of the Industrial Code,on the ground that the Industrial Code provisions that formed the basis for the expert'stestimony did not apply. Generally, an order denying a motion in limine, even when"made in advance of trial on motion papers[,] constitutes, at best, an advisory opinionwhich is neither appealable as of right nor by permission" (Cotgreave v Public Adm'rof Imperial County [Cal.], 91 AD2d 600, 601 [1982]; see Winograd v Price, 21AD3d 956, 956 [2005]). "Inasmuch as those parts of the order herein merelyadjudicated the admissibility of evidence and do not affect a substantial right, no appeallies as of right from those parts of the order" (Innovative Transmission & Engine Co., LLC v Massaro,63 AD3d 1506, 1507 [2009] [internal quotation marks and brackets omitted]; see Angelicola v Patrick Heating ofMohawk Val., Inc., 77 AD3d 1322, 1323 [2010]).
Fisher contends that the court abused its discretion in denying that part of its motionseeking leave to assert in its second amended third-party answer the affirmative defensethat the settlement among plaintiff, Christa, and IPL was not financially reasonable. Weagree, and we therefore modify the order accordingly.
" 'Generally, [l]eave to amend a pleading should be freely granted in theabsence of prejudice to the nonmoving party where the amendment is not patentlylacking in merit . . . , and the decision whether to grant leave to amend. . . is committed to the sound discretion of the court' " (Palaszynski v Mattice, 78AD3d 1528, 1528 [2010]; see CPLR 3025 [b]; Edenwald Contr. Co. vCity of New York, 60 NY2d 957, 959 [1983]). Pursuant to CPLR 3018 (b), a partymust plead as an affirmative defense "all matters which if not pleaded would be likely totake the adverse party by surprise or would raise issues of fact not appearing on the faceof a prior pleading" (id.; see generally Wooten v State of New York, 302AD2d 70, 73 [2002], lv denied 1 NY3d 501 [2003]). Furthermore, "[w]henever adefendant feels the need to deny something not mentioned in the complaint, thedefendant should transform the 'denial' into an affirmative defense and plead it as such"(Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,CPLR C3018:15 at 314). Consequently, we agree with Fisher that the amendment atissue was proper because the settlement had not occurred when the third-party complaintand Fisher's initial and amended third-party answers were served. Thus, the settlementcould not have been "mentioned in the complaint" (id.), nor could the affirmativedefense have been raised in the initial or amended third-party answers.
Christa contends that the court properly denied the motion seeking leave to amendbecause the proposed amendment is patently without merit in light of "the general rule. . . that the indemnitor will be bound by any reasonable good faithsettlement the indemnitee might thereafter make" (Fidelity Natl. Tit. Ins. Co. of N.Y.v First N.Y. Tit. & Abstract, 269 AD2d 560, 561 [2000] [internal quotationmarks omitted]; see Caruso vNortheast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1507 [2011];Goldmark Indus. v Tessoriere, 256 AD2d 306, 307 [1998]). We reject thatcontention. It is well settled that, "[w]here a party voluntarily settles a claim, [the party]must demonstrate that [it] was legally liable to the party whom [it] paid and that theamount of [the] settlement was reasonable in order to recover against an indemnitor" (HSBC Bank USA v Bond,Schoeneck & King, PLLC, 55 AD3d 1426, 1428 [2008] [internal quotationmarks omitted]). Christa failed to submit any evidence establishing that the settlementwas reasonable (cf. Nesterczukv Goldin Mgt., Inc., 77 AD3d 800, 804 [2010]; Freehill v ITT Sheraton Corp.,74 AD3d 876, 877 [2010]; Fidelity Natl. Tit. Ins. Co. of N.Y., 269 AD2d at561-562), and we therefore conclude that the [*3]courtabused its discretion in determining that such general rule should apply to bar Fisher'sproposed affirmative defense.
Fisher's contention that the court erred in granting IPL's motion for summaryjudgment dismissing Fisher's cross claim for indemnification against IPL, because Fisheris an intended third-party beneficiary of the indemnification clause in the contractbetween Christa and IPL, is without merit for the reasons stated in the court's benchdecision. Fisher's remaining contention was raised for the first time in its reply papers,and it is "well settled that contentions raised for the first time in reply papers are notproperly before [us]" (Jacobsonv Leemilts Petroleum, Inc., 101 AD3d 1599, 1600 [2012]; see Nick's Garage, Inc. v LibertyMut. Fire Ins. Co., 120 AD3d 967, 968 [2014]). Present—Smith, J.P.,Fahey, Carni, Valentino and Whalen, JJ.