Fulford v. Baker Perkins, Inc.

In an action to recover damages for personal injuries based upon theories of negligence, breach of warranty and strict products liability, defendant appeals from an order of the Supreme Court, Suffolk County (Copertino, J.), dated November 24, 1982, which denied its motion to amend its answer to the complaint to assert three additional affirmative defenses. | Order affirmed,'without costs or disbursements. 11 On September 17,1975, Sam Fulford, the plaintiff in this action, allegedly sustained traumatic amputation of three of the fingers of his right hand, when, in the course of his employment, that extremity became caught in a compound blending machine manufactured by defendant. 11 In November, 1977, plaintiff commenced the instant action, seeking by his complaint damages predicated upon theories of negligence, breach of warranty and strict products liability. Defendant’s answer, interposed in January, 1978, asserted, inter alia, the affirmative defenses of diminution of damages (see CPLR 1412), assumption of the risk, lack of in personam jurisdiction and Statute of Limitations. In December, 1979, defendant instituted a third-party action against plaintiff’s employer. Thereafter, discovery proceedings were completed, a note of issue and statement of readiness were filed in February, 1981, and the matter was set down for a pretrial conference on August 9, 1982. H Almost five years from the institution of the action, with the trial scheduled to begin within a month, defendant retained new counsel on or about August 9,1982, and brought on a motion by order to show cause returnable September 14, 1982, seeking, pursuant to CPLR 3025, to amend its answer to include three additional affirmative defenses. These defenses were lack of privity between plaintiff and defendant, failure to state a cause of action based upon alleged “changes and substantial modifications” made to the blending machine which, defendant asserted, had been manufactured in 1929 and thereafter passed through seven different owners, and the Statute of Frauds with respect to any claim for breach of warranty. 11 Special Term, noting that all disclosure proceedings had been completed, that the case was presently awaiting trial and that plaintiff had prepared his case based upon an answer interposed nearly five years previously, concluded that plaintiff would be prejudiced by amendment of the answer at the current stage of the litigation. We agree. Ü Pursuant to CPLR 3025 (subd [bb, a court shall freely grant a party leave to amend his pleading upon such terms as may be just, “absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc, v New York City Health & Hosps. Corp., 59 NY2d 755, 757). Whether to grant or deny leave to amend an answer is a matter of judicial discretion to be determined on a case-by-case basis (see Mayers v D’Agostino, 58 NY2d 696, 698; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3025.14; see, also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:4, p 476). H It may reasonably be inferred that defendant was possessed of the data underlying the defenses it belatedly seeks to introduce, either at the time of joinder of issue, or at the latest, defendant knew or should have been cognizant of such facts by the time disclosure was completed. In sum, such defenses could readily have been pleaded earlier, either in the original answer or by a more prompt application to amend that answer. Further, the explanation proffered by defendant — namely, the recent retention of new counsel is no excuse for its inordinate delay in moving to amend. Such neglect, coupled with the fact that plaintiff has been prejudiced by the expenditure of time and effort in preparing a case in 862 response to a pleading from which significant material was needlessly omitted, constitutes sufficient reason for Special Term’s denial of defendant’s motion (see Siegel, NY Prac, § 237, p 289; Shanahan v Shanahan, 92 AD2d 566; cf. James-Smith v Rottenberg, 32 AD2d 792; Foster Co. v Terry Contr., 25 AD2d 721; but cf. Murray v City of New York, 43 NY2d 400, mot for rearg dsmd 45 NY2d 966; Wyso v City of New York, 91 AD2d 661, which permitted the assertion of an affirmative defense based on the exclusive remedy of Workers’ Compensation). H Accordingly, upon review of the record in this case, we conclude that Special Term’s denial of defendant’s motion to amend its answer cannot be deemed an improvident exercise of discretion. Lazer, J. P., Gibbons and Boyers, JJ., concur.