Rodriguez v St. Barnabas Hosp.

[*1] Rodriguez v St. Barnabas Hosp. 2015 NY Slip Op 51918(U) Decided on December 30, 2015 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570988/15

Esther Rodriguez, as Public Administrator for the Estate of Carmen Arroyo, deceased, Plaintiff-Appellant,

against

St. Barnabas Hospital, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered May 3, 2013, which granted defendant's motion to amend its answer to include the defense of release and to dismiss the complaint based on this release.

Per Curiam.

Order (Joseph E. Capella, J.), entered May 3, 2013, reversed, with $10 costs, and defendant's motion denied.

Defendant's motion to amend its answer to include the defense of release should have been denied, where the motion was made on the eve of trial, twelve years after the initial answer was filed, nine years after execution of the proffered release, eight years after the death of plaintiff's decedent, and after plaintiff engaged in discovery, motion practice and placed the case on the calendar, presumably spending considerable time and expense preparing for trial (see Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350 [2008]). Such prejudice, coupled with defendant's failure to offer an excuse for the substantial delay, warranted a denial of the motion (see Velez v South Nine Realty Corp., 57 AD3d 889, 892 [2008]; see also Borges v Placeres, 123 AD3d 611 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 30, 2015