Bauman v. Garfinkle

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about June 11, 1996, which, in an action for medical malpractice seeking damages for, inter alia, lost wages, denied defendant’s motion to amend his answer to include an affirmative defense of setoff under General Obligations Law § 15-108 (a) for whatever damages for lost wages plaintiff might recover in a Federal court action she brought against her former employer, for breach of contract and violation of the Americans With Disabilities Act and Civil Rights Act, unanimously affirmed, without costs.

The Federal court claims for breach of contract and discrimination are not in tort. Accordingly, General Obligations Law § 15-108 (a) does not apply (see, Bankers Trust Co. v Keeling & Assocs., 20 F3d 1092, 1099), and the proposed amendment was properly rejected as insufficient as a matter of law. Concur— Murphy, P. J., Rosenberger, Ellerin and Nardelli, JJ.