Brown v City of New York

[*1] Brown v City of New York 2006 NY Slip Op 51302(U) [12 Misc 3d 1178(A)] Decided on July 6, 2006 Supreme Court, Richmond County Mega, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2006
Supreme Court, Richmond County

Catherine Brown, Plaintiff,

against

The City of New York, New York City Department of Transportation, Defendants.



13234/02

Christopher J. Mega, J.

Upon the foregoing papers, defendants' motion for leave to amend their answer is denied.

This is an action to recover compensatory damages for personal injuries allegedly incurred by plaintiff on May 15, 2002 when she tripped and fell over a defective speed bump situated in the parking lot at the rear of 45 Bay Street, Staten Island, New York. Plaintiff timely filed a Notice of Claim, and in October, 2002, she commenced the instant action against defendants (collectively, "the City"), alleging, inter alia, that the City was the owner of the property upon which the accident occurred. The City's Answer, dated November 8, 2002, denied liability but admitted that it "owned the premises identified in the complaint."

On August 3, 2005, the City moved for summary judgment dismissing the Complaint on the basis that it was not the owner of the premises at any time relevant to plaintiff's claim. By Decision and Order dated August 30, 2005, this Court denied the motion, finding that the City had not met its burden on the issue of ownership, which was, at most, a question for the jury.

The City now moves to amend its Answer, alleging that (1) it mistakenly had admitted ownership in its Answer; and (2) plaintiff would not be prejudiced by the amendment.

Plaintiff opposes the motion, arguing that she relied on the City's admission of ownership in prosecuting this action and in foregoing her tort claim against the alleged proper party, the United States Government. That claim, she asserts, now is barred by the applicable Statute of Limitations of the Federal Tort Claims Act (28 USC § 2671 et seq.) and by the option provisions of the Federal Employees Compensation Act (5 USC § 8101 et seq.).

Subdivision (b) of CPLR 3025 empowers the Court to freely grant motions to amend pleadings. However, such relief is inappropriate when unjustified delay by the moving party has resulted in significant prejudice to the opposing party (Wyso v City of New York, 91 AD2d 661 [2nd Dept 1982]). In determining whether relief is appropriate, the court therefore should consider (1) how long the moving party was aware of the facts upon which the motion is [*2]predicated; (2) whether a reasonable excuse for the delay is offered; and (3) whether prejudice to the opposing party resulted from the delay (Sidor v. Zuhoski, 257 AD2d 564 [2nd Dept 1999]).

Here, the City knew or should have known from the outset of litigation whether it owned the subject property. Yet, it delayed more than three years after joinder of issue before moving to amend the Answer. The City offers no excuse for that delay. Moreover, plaintiff had no reason to believe that the City's admission of ownership was erroneous (Zafuto v. New Life Community Church, 161 AD2d 640 [2nd Dept 1990]). In addition, by the time the City acted, plaintiff had chosen her remedy as against the alleged true owner, her employer, the United States Government, by opting to accept benefits under the Federal Employees Compensation Act in lieu of a tort action under the Federal Tort Claims Act. Thus, allowing the amendment at this late date would leave the plaintiff remediless (Zafuto v. New Life Community Church, 161 AD2d at 641).

Finally, the City's self-serving arguments that (1) it was incumbent upon plaintiff to perform a title search before commencing this action; and (2) that plaintiff learned that the City did not own the property during the course of this action through the deposition testimony of its title examiner, both are without merit. As noted above, plaintiff had no reason to believe that the City's admission of ownership was erroneous (Zafuto v. New Life Community Church, 161 AD2d at 641). Nor may plaintiff be charged with "knowledge" of the true owner due to the deposition testimony of the City's witness. As this Court noted in its decision denying summary judgment, "the contrary positions advocated by the City regarding ownership of the parcel in question on its official web pages versus the deposition testimony of its title examiner raises an issue of fact which a jury must determine."

Under the circumstances, the prejudice that would result from the unexcused, belated motion to amend the Answer is so manifest that the motion must be denied (see Zafuto v. New Life Community Church, 161 AD2d at 641; Griffin v. Columbia University, 51 AD2d 896 [1st Dept 1976]).

Accordingly, it is

ORDERED that the motion is denied.

ENTER

Dated:July 6, 2006 /s/Christopher J. Mega

J.S.C.