The following papers numbered 1 to 3 were fully submitted on the 5th day of February, 2015:

Upon the foregoing papers, the motion by defendant the City of New York (hereinafter the "City") for leave to amend its answers in the following actions is granted to the extent provided, and is otherwise denied.

This matter involves seven separate but related actions in addition to the above-captioned case.

Casparie, et al v. the City of New York (Index No. 13635/93)

Stensland, et al v. the City of New York (Index No. 12154/94)

Dadona, et al v. the City of New York (Index No. 13045/94)

Miesagaes, et al v. the City of New York (Index No. 10130/95)

Miesagaes v. the City of New York (Index No. 10131/95)

Acierno, et al v. the City of New York (Index No. 11299/96)

Tafuri, et al v. the City of New York (Index No. 15001/07)

In each of these actions, plaintiffs are current or former residents of Staten Island who lived [*2]in the vicinity of the Brookfield and/or Fresh Kills landfills.^[FN1] Plaintiffs allege that the City's "negligent and illegal siting, operation and maintenance of the Fresh Kills and Brookfield Avenue garbage dumps has resulted in the release of toxic gases, leachate, and other emissions which caused and/or aggravated the[ir] personal injuries" (see Defendant's Exhibit "A"). It is further alleged that "at least [since] 1979, the defendant has operated the Dumps in violation of the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act ("CWA"), and the New York State Environmental Conservation Law ("ECL") (id.). As a result, plaintiffs claim to "have suffered and continue to suffer great discomfort, illness, disease, emotional strain and, in some cases, death due to their exposure to the toxic and hazardous emissions described above" (id.).

In this motion, dated November 24, 2014, the City moves for leave to amend its answers in each of these cases to assert the affirmative defense of governmental immunity. More specifically, the City seeks to add the following: "Defendants are immune from suit for their exercise of discretion in the performance of a governmental function or their exercise of professional judgment" (see Plaintiffs' Exhibit "A").

In support of its motion, the City contends that the affirmative defense of governmental immunity was plead in the Acierno case, and since the facts therein are similar, if not identical, to the remaining seven cases, the proposed amendment will not prejudice plaintiffs (see Scot C. Gleason, Esq., paras 2, 6). Moreover, these cases are still in the discovery phase of litigation and have not yet been certified for trial (id. at 12).

In the alternative, the City requests permission to re-serve its answer in four of the cases "since neither party has a record of the City's answers", and in doing so, "the City will attempt to answer in the same way it originally answered" (see Scot C. Gleason, Esq., para 2). Insofar as it appears, the parties have conducted a diligent search for the answers to all eight complaints but they were only able to find four (id. at 4).

Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting directly from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Turturro v. City of New York, 77 AD3d 732, 734 [2nd Dept 2010]). While leave to amend should be freely given, the decision as to whether to grant such leave is generally left to the sound discretion of the court (see Keating v. Nanuet Bd of Educ, 44 AD3d 623, 624 [2nd Dept 2007]). In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion is predicated, whether a reasonable excuse for the delay has been offered, and whether prejudice resulted therefrom (see Brooks v. Robinson, 56 AD3d 406, 407 [2nd Dept 2008]). In order to establish prejudice, parties must demonstrate that they have been hindered in the preparation of their case or have been prevented from taking some measure in support of their position (see Norwood v. City of New York, 203 AD2d 147, 149 [2nd Dept 1994]).

Under the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to plaintiff apart from the public in general (see Valdez v. City of New York, 18 NY3d 69, [*3]77 [2011]; Rodriguez v. Town of Clarkstown Police Dept, 123 AD3d 690 [2nd Dept 2014]). In addition, there are several other types of immunity that may be raised by a governmental entity in the proper case (see Valdez v. City of New York, 18 NY3d at 76, n.2).^[FN2]

In answer to the City's reliance on the immunity defense asserted in Acierno (i.e. that "[the City] acted reasonably, properly, lawfully and in good faith and thus is immune from liability" [id. at 6]), plaintiffs assert that the foregoing constituted a claim of qualified immunity, while the amendment sought in the instant motion seeks to interpose absolute immunity as an affirmative defense (see Klebe v. Tri-Mun Sewer Commn, 160 AD2d at 679). It is further claimed that this, at a minimum, would force them to alter their trial strategy. Regardless of the nature of the immunity defense asserted in Acierno (which need not be decided here), it is the City's position that the granting of its motion will not result in prejudice (see e.g. Norwood v. City of New York, 203 AD2d at 149).

Although not unsympathetic to plaintiffs' claim that the proposed amendment will require further extensive and costly discovery, the foregoing, standing alone, is insufficient to require the denial of the City's motion. It is undisputed that discovery is still on-going in this matter, and that the case has yet to be certified as ready for trial. Moreover, the fact that the proposed defense might defeat plaintiffs' causes of action is not the type of prejudice which will bar a motion for leave to amend (see Norwood v. City of New York, 203 AD2d at 149).

Nevertheless, it is uncontroverted that during the 22 years this case has been pending, witnesses have died and key papers have been lost (see Affirmation of Mitchel H. Ashley, Esq., p 10). It is also true that there have been over 50 appearances in this matter, including a multitude of compliance conferences relating to discovery; extensive motion practice; and numerous telephone conferences and email exchanges, during which the Court has sought to accelerate the pace of the litigation. Accordingly, the City has had multiple opportunities to raise governmental immunity as a defense. It was done in Acierno, and could easily have been done in the seven remaining cases. Moreover, the City has thus far failed to offer any reasonable excuse for its considerable delay in moving to amend its answers to include an affirmative defense which could have been asserted at the onset of litigation.^[FN3]

In view of all of the above, and in recognition of the additional delay that the proposed amendment is likely to cause in this already protracted litigation, leave to serve an amended answer is denied (see Schelchere v. Halls, 120 AD3d 788 [2nd Dept 2014]; Velez v. South Nine Realty Corp, 57 AD3d 889, 892 [2nd Dept 2008]; Keating v. Nanuet Bd of Educ, 44 AD3d 623 [2nd Dept 2007]).

Accordingly, it is

ORDERED that so much of the motion of defendant the City of New York as is for leave to re-serve plaintiffs with copies of the four answers which appear to have gone missing in some of the related actions ^[FN4] is granted; and it is further

ORDERED that said answers shall be deemed served; and it is further

ORDERED that in all other respects, the motion is denied.