[*1]
Nibbs v Downstate Obstetricians & Gynecologists, P.C.
2015 NY Slip Op 50861(U) [47 Misc 3d 1226(A)]
Decided on June 1, 2015
Supreme Court, Kings County
Steinhardt, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 1, 2015
Supreme Court, Kings County


Norma Thomas Nibbs as guardian of the person and property of SHERYL SUZANNE NIBBS, an incapacitated person pursuant to Article 81 of the Mental Hygiene Law, and NORMA THOMAS NIBBS, individually, Plaintiffs,

against

Downstate Obstetricians and Gynecologists, P.C., OZGUL MUNEYYIRCI- DELALE, M.D., ROOPA GUPTA, M.D., MANISHA JAIN, M.D., DIAGNOSTIC CARDIOLOGY ASSOCIATES, SUDARSANAM KONKA, M.D., JAMIL IBRAHIM, M.D., FADY KHOURY-COLLADO, M.D., YI-CHUN LEE, M.D., MIRA HELLMAN, M.D., DENNIS DIMACULANGAN, M.D., SPIRO DEMETIS, M.D., PETAR PLANINIC, M.D., NEIL ARANHA, M.D., EMAN AL-JANABI, M.D., YIJU LIU, M.D., JEAN CHARCHAFLIEH, M.D., and ALEXANDRU APOSTOL, M.D., Defendants.




21550/2007
Marsha L. Steinhardt, J.

Defendants FADY KHOURY-COLLADO, M.D. and YI-CHUN LEE, M.D. move by Order to Show Cause for an Order pursuant to CPLR §3025 (b) and (c) amending their Verified [*2]Answer to include an affirmative defense of General Obligations Law §15-108. Defendant ALEXANDRU APOSTOL, M.D. and Defendants DOWNSTATE OBSTETRICIANS AND GYNECOLOGISTS, P.C., OZGUL MUNEYYIRCIDELALE, M.D. and SPIRO DEMETIS, M.D. move by Notice of Motion for the same relief. Plaintiff opposes the motions.

This is an action sounding in medical malpractice wherein it is claimed that during diagnostic laparoscopic surgery defendant Dr. Muneyyircidelale perforated the patient's bowel and failed to diagnose it during the procedure. Plaintiff claims that defendant Dr. Khoury-Collado also failed to diagnose the perforation and that defendants Dr. Dementis, Dr. Lee and Dr. Apostol failed to properly treat the patient post-operatively resulting in the development of sepsis. She claims that the patient suffered a cardiac arrest and anoxic encephalopathy as a result of the malpractice.



The action was commenced by plaintiff's filing of a Summons and Verified Complaint on or about June 14, 2007. Plaintiff also commenced an action against SUNY Downstate in the Court of Claims on or about April 3, 2007. Verified Answers were served on behalf of Drs. Muneyyircidelale, Dementis, Apostol, Khoury-Collado, Lee and Downstate Obstetricians and Gynecologist, P.C. Their respective Answers contain the affirmative defense of Article 16, however, the GOL §15-108 is not interposed as an affirmative defense. A Note of Issue was filed on June 27, 2014 as to the action in Supreme Court.

Plaintiff commenced negotiating a settlement of the Court of Claims action in 2013 which was finalized by the signing of a Stipulation of Settlement and Discontinuance dated November 24, 2014. The stipulation was "So-Ordered" on December 11, 2014 and filed on January 20, 2015. An Order to Show Cause sought by defendants Khoury-Collado and Lee was signed by this Court on January 14, 2015 and the motions for the same relief on behalf of the other movants were filed shortly thereafter. The motions request leave to amend their Answers to assert as an affirmative defense GOL§15-108. The movants argue that they are entitled to a set-off of the greater of either the amount of the settlement or the settling defendants' equitable share of plaintiff's damages award on a verdict.



In opposition to the motions, plaintiff's attorney concedes that GOL§15-108 is an affirmative defense which must be asserted in the Answer but argues that the amendment should not be allowed as it will cause great prejudice to the plaintiff. She claims that the provision would substantially limit the total amount of recovery to the plaintiff and would result in a benefit to the moving defendants. She claims that the strategy of settling first with the State arose from reliance that unlike the State defendants, the movants had not interposed GOL §15-108 as an affirmative defense in their Answers. Thus she argues, should the amendment be granted, the plaintiff's ward will be irrevocably prejudiced by the resulting set-off reduction applied to the verdict. She cites Bolonoski v. Trustees of Columbia University, 21 A.D 3d (2d Dept. 2005) where the Second Department stated that a showing of no prejudice to the plaintiff must be made before granting an amendment pursuant to CPLR 3025(b). Plaintiff also relies on Oakes v. Patel, 20 NY3d 633 (2013) where the Court of Appeals concluded that the trial court did not abuse its discretion finding that plaintiff would be prejudiced by adding GOL§15-108 defense to the Answer after that case was tried. Additionally, plaintiff argues that Whalen v. Kawasaki Motors Corp., 92 NY2d 288 (1998), relied upon by the movants, advances her [*3]position because the Court of Appeals held that prejudice to a party precludes the granting of a late amendment of a GOL §15-108 affirmative defense.



CPLR §3025 provides in relevant part:



(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.



(c) Amendment to conform to the evidence. The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances.



It is well established that "(l)eave to amend a pleading should be freely granted where ... the proposed amendment is not palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing party." Saleh v. 5th Ave. Kings Fruit & Vegetables Corp., 92 AD3d 749, 750 (2d Dept. 2012); Bolanowski v. Trustees of Columbia Univ. in City of NY, 21 AD3d 340, 341 (2d Dept. 2005). An application pursuant to CPLR 3025(c) to amend the pleadings is addressed to the sound discretion of the court, and where no prejudice is shown, the amendment may be allowed during trial or even after trial. 715 Ocean Parkway Owners Corp. v. Klagsbrun, 74 AD3d 1314 (2d Dept. 2010); Murray v. City of New York, 43 NY2d 400, 404—405, (1977). A showing of prejudice requires some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position. Loomis v. Civetta Corinno Const. Corp., 54 NY2d 18, 23 (1981). "Prejudice, of course, is not found in the mere exposure of the defendant to greater liability." Loomis, supra at 23; 715 Ocean Parkway Owners Corp., supra at 1315.



General Obligations Law §15-108(a) states:



Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.



In tort actions involving multiple defendants where a plaintiff settles with one or more defendants before trial, and proceeds to trial against the remaining defendants, General Obligations Law § 15-108 (a) permits nonsettling defendants a monetary offset against the [*4]amount of a verdict. The permitted reduction is the greatest of three items: (a) the amount stipulated as consideration for the release; (b) the amount actually paid for the release; or (c) the settling tortfeasor's equitable share of plaintiff's damages. Whalen v. Kawasaki Motors Corp., 92 NY2d 288, 292 (1998). The Court of Appeals, referring to GOL §15-108, holds that "(t)he purpose of the statute is to encourage settlement, although the statute is also concerned with ensuring equity. Plaintiffs should be fairly compensated, but nonsettling defendants should not bear more than their fair share of a plaintiff's loss. Moreover, the possibility of double recovery should be avoided." Whalen v. Kawasaki Motors Corp., 92 NY2d 288, 292 (1998); Williams v. Niske, 81 NY2d 437, 442—444 (1993); accord, Dudick v. Keene Corp., 82 NY2d 821 (1993), affg. for reasons stated at 188 AD2d 214, 218 (1st Dept. 1993); Didner v. Keene Corp., 82 NY2d 342, 351, (1993); Pollicina v. Misericordia Hosp. Med. Ctr., 82 NY2d 332 (1993).



In Whalen v. Kawasaki Motors Corp., 92 NY2d 288 (1998), the plaintiff brought an action against manufacturer Kowasaki Motors and retailer Robinson Cycle for personal injuries sustained in an accident. Plaintiff settled with Kowasaki on the eve of trial and continued to try the case against Robinson. As part of the settlement, plaintiff agreed to withdraw all claims against Robinson which were derivative of Kowasaki's liability and proceeded against Robinson on the theory of its direct liability. After a verdict was returned finding him 8% at fault, Robinson moved to amend his Answer to add GOL §15-108 as an Affirmative Defense. The Appellate Division in Whalen stated that "Robinson's proposed amendment may not be considered late; it closely followed the settlement and plaintiff's purported oral amendment of the complaint. In any event, even late pleading of the statute would not have prejudiced or surprised plaintiff because it was plaintiff's negotiation of the settlement that invoked the statute." 442 AD2d 919, 919 (1st Dept. 1997).



The Court of Appeals in Whalen affirmed the Appellate Division stating that "(u)nder the CPLR's liberal pleadings practice, a party may amend its pleadings to raise General Obligations Law §15—108 as a defense at any time, even after trial, provided that the late amendment does not prejudice the other party. 92 NY2d at 293. The Court noted that "(p)rejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment." 92 NY2d at 293. Addressing the issue of prejudice and noting that the plaintiff stipulated it would not attribute any blame to Kawasaki, the Court of Appeals held that there was no prejudice to granting the amendment after the verdict as plaintiff had irretrievably set his course in the litigation and in the trial of the matter and could not have sought any apportionment of fault against Kawasaki even if the defense had been raised before the trial. Thus the Court of Appeals affirmed the appellate court's conclusion that the request to amend the Answer to add GOL §15-108 should have been allowed.



In this case, plaintiff fails to make a showing of prejudice. Plaintiff's claim that the amendment is late is not supported by the facts as the settlement giving rise to such a defense has just recently been finalized. As occurred in Whalen, it was the settlement of the Court of Claims action that evoked the request to add GOL §15-108 to the movants' Answers. No time was wasted in seeking this relief as defendants' motions were filed shortly after settlement with the State was formalized. Additionally, the trial of this action has not yet taken place. Plaintiff cannot claim surprise by the amendment defendants seek as their Answers included an Article 16 [*5]defense to apportion liability. Plaintiff's claim that she relied on movants' failure to plead the provision when she negotiated a settlement with the State is of no avail. It is well known that pleadings may be amended at any time in the absence of prejudice and in the court's discretion. Thus this reliance was misplaced and cannot be used against the defendants. Further, the claim that a set-off will inure to plaintiff's financial disadvantage is not akin to prejudice and rather, the amendment may result in preventing double recovery by plaintiff. In sum, the proposed amendment will not change plaintiff's litigation posture or hinder the preparation of her case.



Plaintiff's reliance on Oakes v. Patel adds little to support her arguments. The court in Oakes relied on Whalen concluding that the decision to grant a belated amendment to the Answer is within the discretion of the trial court. Of relevance is that the court in Oakes followed the holding in Whalen in determining whether the late amendment would prejudice the plaintiff and affirmed the lower court's decision finding that the delay in seeking the amendment prejudiced the plaintiff.



The Oakes case involved a release resulting from a liquidation claim filed by plaintiffs against the moving defendant, a hospital by its successor in interest. Relying on the terms of the release, plaintiff tried the case focusing on defendant's fault rather than the liability of the neurological group for which the defendant was vicariously liable. The jury found that the defendant hospital was 75% at fault while attributing 19% fault against the neurology group. After a verdict was reached, the defendant moved to amend its answer to assert a defense of release and to dismiss plaintiffs' claims against it. In so moving, the defendant claimed for the first time that by filing the liquidation claim, plaintiffs effectively released their claims against the defendant to the extent they were covered by insurance. The Court of Appeals found that the trial court had a basis for finding that the unexcused delay in seeking the post-verdict amendment prejudiced the plaintiffs. The Court noted that the trial strategy would have been very different had the defendant made its motion before trial as plaintiffs would have otherwise sought to attribute more fault to the neurology group.



This Decision is fully in line with the holdings in Whalen and Oakes. The other cases cited by plaintiff are either consistent with Whalen or involve facts which are not present in the instant matter. The plaintiff herein fails to show prejudice by the addition of the set-off defense. These motions are timely and the instant case is not even close to being on the eve of trial. Defendants have done nothing to result in prejudice to the plaintiff. Indeed the only change in the posture of the litigation was the settlement with the State, which came about by plaintiff's own actions.



Accordingly, defendants' motions are granted. The proposed Answers annexed to the respective motions are deemed served.



This constitutes the opinion, decision and order of this court.



ENTER,



HON. MARSHA L. STEINHARDT

J.S.C.