Rodriguez v. Extell W. 57th St. LLC

Rodriguez v Extell W. 57th St. LLC (2020 NY Slip Op 06034)

Rodriguez v Extell W. 57th St. LLC

2020 NY Slip Op 06034

Decided on October 22, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 22, 2020
Before: Friedman, J.P., Kern, Scarpulla, Shulman, JJ.
Index No. 300786/14 Appeal No. 12156N Case No. 2020-01945

Cerussi & Spring, P.C., White Plains (A. Joseph Giannini of counsel), for appellants.

Torgan Cooper & Aaron, P.C., New York (Jonathan Tabar of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about December 13, 2019, which denied defendants' motion to amend the answer to assert as an eighth affirmative defense the doctrine of collateral estoppel and/or res judicata, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff failed to demonstrate that he would be prejudiced if defendants were permitted to amend the answer (see McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]). Plaintiff's contention that he would have to alter his trial strategy to account for the Workers' Compensation Board determination of which he has been aware for years is insufficient (see Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654-655 [1st Dept 2009]). Nor did plaintiff demonstrate that the proposed additional

affirmative defense is palpably devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 22, 2020