Goodwin v. Empire City Subway Co., Ltd. , 998 N.Y.S.2d 639 ( 2015 )

Goodwin v Empire City Subway Co., Ltd. (2015 NY Slip Op 00705)

Goodwin v Empire City Subway Co., Ltd.

2015 NY Slip Op 00705

Decided on January 29, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2015
Gonzalez, P.J., Friedman, Andrias, Gische, Kapnick JJ.

14094N 152769/13

[*1] Julius Goodwin, Plaintiff-Respondent,

v

Empire City Subway Company, Ltd., et al., Defendants, The City of New York, et al., Defendants-Appellants.

Morris Duffy Alonso & Faley, New York (Kerry E. Sullivan and Andrea M. Alonso of counsel), for appellants.

Order, Supreme Court, New York County (Louis B. York, J.), entered on or about January 29, 2014, which denied the unopposed motion by the City of New York and the New York City Department of Transportation (collectively the City) to amend the answer to assert certain affirmative defenses and counterclaims, unanimously modified, on the law, to grant so much of the City's motion as sought to assert affirmative defenses and cross claims other than affirmative defenses based on Workers' Compensation, accord and satisfaction and the emergency doctrine, and otherwise affirmed, without costs.

The affirmative defenses based on Workers' Compensation Law, accord and satisfaction and the emergency doctrine are waived by the City. In the absence of any opposition, either to the motion below or to this appeal, it cannot be said that the proposed amended affirmative defenses or cross-claims are "palpably insufficient" or "patently devoid of merit" (see Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504-505 [1st Dept 2011]; Perrotti v Becker, Glynn, Melamed & Muffly LLP, 82 AD3d 495, 498 [1st Dept 2011]), especially at this early stage of discovery. Nor can it be said that plaintiff or co-defendants were surprised or prejudiced by proposed amendments, as no party felt it necessary to oppose the motion. There is certainly no "indication that the [opposing party] has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position" (Kocourek v Booz Allen Hamilton Inc., 85 AD3d at 504). The City was not required to establish the merits of each of the [*2]affirmative defenses or cross claims (see Perrotti v Becker, Glynn, Melamed & Muffly LLP, 82 AD3d at 498), so long as they were not palpably insufficient or patently devoid of merit, and did not surprise or prejudice any opposing party.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2015

CLERK