Defendant Daniell Bolton (hereinafter "Bolton") moves to dismiss the complaint of Debra Laundry (hereinafter "Laundry") based upon her default in a related third-party action.^[FN1] Defendants Consolidated Bus Transit, Inc. and Professional Charter Services Inc. (hereinafter referred to collectively as "Consolidated") cross-move, first, pursuant to CPLR 3025(b), for leave to amend its answer to assert the affirmative defenses of collateral estoppel and res judicata, and second, pursuant to CPLR §3211(a)(5), to dismiss Yokum's and Laundry's respective complaints based upon those affirmative defenses.^[FN2]

Laundry commenced the instant personal injury action by the filing of a summons and complaint on January 13, 2009. Laundry was the driver of a motor vehicle which was involved in an accident with defendants' vehicle. Yokum was a passenger in Laundry's car and commenced a separate action against defendants on September 10, 2009. On April 9, 2010, defendants commenced a third-party action against Laundry in the Yokum action. In it, they alleged Laundry was the cause of the accident. Laundry defaulted in answering the third-party summons and complaint. On April 20, 2010, the Laundry action and the Yokum action were joined for trial. Defendants then moved for a default judgment against Laundry in the third-party [*2]action. On May 3, 2011, defendants' motion for a default judgment against Laundry in the third-party action was granted. On May 2, 2012, Laundry moved to vacate the May 3, 2011 order and on December 9, 2013, that motion was denied. On February 26, 2014, this Court granted Yokum's motion to consolidate the action against Consolidated and Bolton with a separate action commenced by Yokum against Laundry.^[FN3]

CPLR §3211(e) provides that a defense based upon the doctrine of collateral estoppel is waived unless raised either in a responsive pleading or in a motion made before service of the responsive pleading is required. See CPLR §3211(e), §3211(a)(5). Consolidated now moves to amend its answer to assert the defenses of collateral estoppel and res judicata. "The decision to grant or deny leave to amend an answer is within the trial court's discretion (Citations omitted)." Mayers v. D'Agostino, 58 NY2d 696,698 (1982). See DeLaurentis v. Nager, 302 AD2d 486 (2d Dept 2003). In the absence of "prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." G.K. Alan Assoc. v. Lazzari, 44 AD3d 95, 99 (2d Dept 2007). See CPLR §3025(b); Fischer v. Broady, 118 AD2d 827 (2d Dept 1986). 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 (citations omitted)." Morris v. Queens Long Is. Med. Group, P.C., 49 AD3d 827 (2d Dept 2008).

Notwithstanding that the default judgment, which is the basis for the purported defenses of collateral estoppel and res judicata, was granted on May 3, 2011, Consolidated waited until January, 2014, on the eve of trial, to move to amend its answer. Moving at such a late date results in clear prejudice and surprise to plaintiff. Consequently, Consolidated's motion is denied in its entirety.

Bolton's motion does not include leave to amend his answer pursuant to §3025(b). It seeks to dismiss outright plaintiff's action upon the defense of res judicata. Since pursuant to CPLR §3211(e), res judicata must be raised in a responsive pleading or else it is waived, the Court finds that Bolton has waived that defense. Therefore, Bolton's motion is likewise denied in its entirety.

In light of the above determinations, the Court need not address the issue of whether the proposed amendment was palpably insufficient or patently devoid of merit.

The foregoing shall constitute the Decision and Order of the Court.

DONALD SCOTT KURTZ

Justice, Supreme Court