This is a personal injury action in which plaintiff, MIN DUAN WONG, seeks to recover monetary damages for the wrongful death of her mother, Sai Yu Chen. Plaintiff Zon Guang Wu, the decedent's husband seeks to recover for loss of services. On November 15, 2010, the decedent, a pedestrian, was walking or crossing in the westbound lanes of Jericho Turnpike at 11th Street in New Hyde Park, Nassau County, when she was struck by [*2]the motor vehicle owned and operated by defendant, Francis Henry.

The plaintiffs commenced the instant action by filing a summons and complaint on March 8, 2011. Issue was joined by service of defendant's answer with affirmative defenses on March 31, 2011. A note of issue was filed on April 6, 2012. The matter is now on the calendar of the Trial Scheduling Part for May 9, 2013.

Defendant now moves by order to show cause dated January 17, 2013, for an order pursuant to CPLR 3025(b), granting defendant leave to amend his answer to plead the emergency doctrine as an affirmative defense. Defendant has submitted a proposed amended answer asserting the emergency doctrine as the fifth affirmative defense. The proposed answer states that due to the sudden and unexpected actions of the plaintiff and unidentified third party or other emergency, defendant was left without time to contemplate or weight alternative courses of action, cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore was not negligent. Defendant asserts that the motion to amend is based upon the defendant's testimony at his examination before trial and the findings of defendant's expert forensic consultant and accident reconstructionist, Robert Genna.

Defendant testified at an examination before trial on February 2, 2012 that on the day of the accident he was on his way home from work. He was proceeding in the left lane of westbound Jericho Turnpike when he observed a black vehicle in front of his swerve to the right. When the black car swerved he observed a white object to the right of his vehicle. He did not realize that the white object was a person. He veered to the left to avoid the object but struck Ms. Chen with his vehicle.

Following the depositions, the defendant retained Mr. Genna, who submitted an affidavit dated January 10, 2013 in support of the motion. He states that he reviewed the police accident reports, police photographs, and deposition transcripts, as well as making an on-site inspection of the scene. He states that in his opinion the physical evidence, including damage to the lower part of the vehicle and pavement scrape marks, supports a finding that the initial contact occurred with the lower front passenger side of the defendant's vehicle while the pedestrian was positioned low to the pavement. He states that he believes that after the black vehicle swerved to avoid contact with the pedestrian, Mr. Henry did not have sufficient time and distance [*3]to avoid contact with the pedestrian who was positioned low to the pavement when struck. He states that in his opinion the decedent was not upright or standing because there was no damage to the hood of the vehicle. He believes that since she was at a low position when struck she was not visible to Mr. Henry as he approached behind the other vehicle. He states that these conditions created an emergency situation that prevented defendant from having an opportunity to avoid the subject accident.

Counsel states that leave to amend the answer to assert the emergency doctrine should be granted as all the facts are within the knowledge of the plaintiff and there is no unfair surprise by raising the defense at this time (citing Bello v Transit Auth, 12 AD3d 58 [2d Dept. 2004]). Counsel contends that the facts giving rise to the application to amend the pleadings are contained in the depsitions and police reports and have been within the knowledge of the plaintiffs throughout the course of the case and therefore the plaintiffs have not been hindered in the preparation of their case.

In opposition, plaintiff contends that the motion to amend the answer which was made after the filing of the note of issue and on the eve of trial which is now scheduled for May 9, 2013 is untimely. In addition, plaintiff's counsel contends that because the defendants had knowledge of the underlying facts potentially supporting the emergency doctrine as an affirmative defense at the time their answer was served that they waived the defense by failing to assert it at that time. Counsel also asserts that the plaintiff failed to offer an excuse for the delay in seeking to assert the affirmative defense at this time. Further, plaintiffs claim that the proposed amendment is highly prejudicial as it does not permit the plaintiff to properly conduct discovery on the facts and circumstances raised in the expert's report and prepare its case as the matter has been certified ready for trial. Further plaintiffs assert that plaintiffs have prepared their case based upon the assumption that the emergency defense was not being raised and did not retain an expert with respect to the issues now raised by the defendant.

Upon review and consideration of the defendant's motion plaintiffs' affirmation in opposition and the defendant's reply thereto, this court finds as follows:

The plaintiff's motion for an order granting leave to amend the answer to include the affirmative defense of the "emergency doctrine" as set forth in the proposed amended verified answer annexed to the defendant's motion papers is denied. [*4]

"The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency (Bello v Transit Auth., 12 AD3d 58 [2d Dept. 2004]).

The defendant seeks to invoke the affirmative defense of the emergency doctrine based upon the opinions of their retained accident reconstruction expert. Mr Genna's opinion is that plaintiff was faced with an emergency, not of his own making, because the black car in front of him swerved to avoid contact with the pedestrian and defendant was left without sufficient time and distance to avoid striking the pedestrian. Moreover, Mr. theorizes, based on his review of the accident photographs and damage to the defendants vehicle, that the decedent was not standing or in an upright position at the time of the accident, but rather, was crouched down in a position low to the pavement and therefore not visible to the defendant when she was struck.

Generally, in the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given (see CPLR 3025[b]; Russo v Lapeer Contr. Co., Inc, 84 AD3d 1344 [2d Dept. 2011]; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]) unless the proposed amendment is palpably insufficient or patently devoid of merit (see Bernardi v Spyratos, 79 AD3d 684 [2d Dept. 2010]; Martin v Village of Freeport, 71 AD3d 745 [2d Dept. 2010]; Malanga v Chamberlain, 71 AD3d 644 [2d Dept. 2010]; Uadi, Inc. v Stern, 67 AD3d 899 [2d Dept. 2009]); Lucido v Mancuso, 49 AD3d 220 [2d Dept. 2008]).

However, "where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious" (Sampson v Contillo, 55 AD3d 591 [2d Dept. 2008] quoting Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827 [2d Dept. 2008] and Clarkin v Staten Isl. Univ. Hosp., 242 AD2d 552 [1997]). The Courts have also held that when leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Sunrise Harbor Realty, LLC v 35th Sunrise Corp., 86 AD3d 562[2d Dept. 2011]; Alrose Oceanside, LLC v Mueller, 81 AD3d 574[ 2d Dept. 2011]; Navarette v Alexiades, 50 [*5]AD3d 869 [2d Dept. 2008]; Morris v Queens Long Is. Med. Group, P.C., supra; American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792 [2d Dept. 2009]). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Sampson v Contillo, supra. quoting Cohen v Ho, 38 AD3d 705 [2d Dept. 2007]).

Here, this court finds that the defendant has failed to offer a reasonable excuse for delaying its motion for leave to amend until after the note of issue was filed and until the matter was scheduled for trial. The defendant told the police at the scene and testified at his examination before trial that a black car in front of him swerved out of the way without leaving him enough time to react to the white object in the road. Furthermore, the alleged emergency has been known to the defendant since the commencement of this action and the defendant was in a position to plead the emergency doctrine as an affirmative defense at the time he served his initial answer (see Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 874 [2d Dept. 2007]).

However, defendant asserts that he was not aware that the decedent was allegedly in a crouching position until after he received his expert's report. However, defendant has not stated when he retained the expert whose report was not provided to the plaintiff until January 2013. Moreover, this court finds that the plaintiff would be significantly prejudiced by an amendment of the answer to assert the emergency doctrine on the eve of trial where the defendant intends to base the emergency on the expert's theory that the plaintiff was not standing up but was in a crouching position at the time of the accident. This Court finds that the plaintiffs would be prejudiced by the late addition of this defense theory as plaintiffs did not did not have an opportunity to conduct any discovery regarding this theory (see McGowan v RPC Realty Corp., 46 AD3d 771[2d Dept. 2007]).

Accordingly, for the above stated reasons, it is hereby,

ORDERED, that the defendant's motion to amend his answer to include the affirmative defense of the emergency doctrine is denied.

Dated: April 16, 2013

Long Island City, NY______________________________ [*6]

ROBERT J. MCDONALD

J.S.C.