|Pain Mgt. Ctr. of N.J., P.C. v Travelers Prop. & Cas. Ins. Co.|
|2019 NY Slip Op 50607(U) [63 Misc 3d 142(A)]|
|Decided on March 8, 2019|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Law Office of Aloy O. Ibuzor (Michael L. Rappaport of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 18, 2016. The order granted defendant's motion for leave to amend its answer and, upon amendment, for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits for services it had rendered to its assignor, defendant moved for leave to amend its answer to assert the affirmative defense of collateral estoppel and, upon amendment, for summary judgment dismissing the complaint. By order dated January 7, 2016, the Civil Court granted defendant's motion.
In support of the branch of defendant's motion seeking leave to amend its answer to assert the affirmative defense of collateral estoppel, defendant argued that an April 2014 arbitrator's decision had found that plaintiff could not recover no-fault benefits because it was not a licensed professional medical corporation in the State of New York. Leave to amend a pleading "shall be freely given" absent prejudice or surprise resulting from the delay (CPLR 3025 [b]). Mere lateness is not a barrier to an amendment; rather, significant prejudice must be demonstrated to justify the denial of an application for an amendment (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 ). Contrary to plaintiff's arguments, plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to the answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 ), or to establish that defendant had waived its right to assert the defense. Consequently, the Civil Court properly granted the branch of defendant's motion seeking leave to amend its answer.
With respect to the branch of defendant's motion seeking summary judgment based on the [*2]doctrine of collateral estoppel, plaintiff's argument on appeal as to why the doctrine of collateral estoppel does not apply in the case at bar is, essentially, that it cannot be determined if the issues to be litigated were substantially similar because defendant failed to include in its motion the evidence and documents submitted by the parties at the arbitration. In view of the fact that plaintiff does not point to any ambiguity in the arbitrator's decision, or any distinction between the facts of this case and those underlying the arbitration, or any other meritorious argument, plaintiff has presented no basis to disturb so much of the order of the Civil Court as, upon amendment of the answer, granted the branch of defendant's motion seeking summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.