By Order to Show Cause (Lynch, J.) dated May 24, 2013, and initially returnable June 3, 3013, defendants Paul S. Hendrickson, D.O. and Schenectady Anesthesia Associates, P.C. (hereinafter defendants) seeks an order granting leave [*2]to serve both an amended answer, and a supplemental expert response. Plaintiff opposes the application. Oral argument was held on June 5, 2013.

A jury trial day certain is scheduled to commence June 17, 2013. The impetus for the instant application is plaintiff's recent settlement with defendants Frank L. Genovese, M.D. and New York Spine and Neurosurgery Associates, P.C., approved on the record on June 5, 2013.^[FN1] Given plaintiff's settlement of the claim against Dr. Genovese, defendants seek to amend their expert response to include a contention of malpractice against Dr. Genovese. Correspondingly, defendants seek to amend their answer by adding an affirmative defense under General Obligation Law §15-108. Up to this point, defendants had not asserted a cross claim against Dr. Genovese, nor did their expert response address any contention of malpractice on the part of Dr. Genovese. Defendant's Answer did include an affirmative defense for apportionment under CPLR Article 14. Essentially, defendants seek permission to have their expert render an opinion of malpractice against Dr. Genovese in anticipation that plaintiff will offer no such proof at trial, notwithstanding the fact plaintiff's expert witness response includes a contention of malpractice against Dr. Genovese. The purpose is to allow for a determination by the jury of each party's equitable share of the damages in accord with General Obligations Law §15-108 and CPLR Article 14.

While plaintiff has opposed the application, and even seeks to preclude defendants from offering any evidence that Dr. Genovese rendered negligent care to plaintiff's decedent, the Court sees no prejudice to plaintiff in granting defendants' application in is entirety. A review of plaintiff's neurosurgical expert response confirms that plaintiff was fully informed as to the treatment provided by Dr. Genovese. While the Court recognizes that defendants failed to particularize the apportionment defense raised in their answer, there is clearly no surprise here as to the claims against Dr. Genovese. The only difference now is that defendants will assert the claim of malpractice against Dr. Genovese, instead of plaintiff. A contrary ruling would deprive defendants of a proper apportionment of culpability under CPLR Article 14 and General Obligations Law §15-108 (see Whalen v. Kawasaki Motors Corp. USA, 92 NY2d 288, 293; Brunetti v. Mussallam, 59 AD3d 220, 221-222). Plaintiff's suggestion that the settlement with Dr. Genovese was accepted in reliance on the existing pleadings, and that approval of defendants [*3]application somehow now compromises their rights with respect to the settlement is not convincing.

Accordingly, defendants' motion is granted in its entirety, withou costs. Plaintiff's cross motion is denied without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for defendant. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:June, 2013

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Order to Show Cause (Lynch, J.) dated May 24, 2013, with Affidavit of

Michael E. Catalinotto, Sr., Esq. dated May 23, 2013, and Exhibits "A" - "D";

2.Notice of Cross Motion dated June 3, 2013, Affirmation of Laura Jordan, Esq.

dated June 3, 2013, with Exhibits "1" - "9"; and

3.Reply Affirmation of Michael E. Catalinotto, Sr., Esq. dated June 4, 2013.