Opinion
# 2012-041-052 Claim No. 115919 Motion No. M-81195
05-23-2012
CONNING v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to amend answer to add affirmative defense of waiver (release) is granted because claimant has not shown that prejudice will result if motion is granted and because defense is meritorious; Defendant's motion for summary judgment dismissing the claim based upon affirmative defenses of waiver and collateral estoppel is granted. Case information
UID: 2012-041-052 Claimant(s): SUZANNE M. CONNING Claimant short name: CONNING Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115919 Motion number(s): M-81195 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: ALAN T. ROTHBARD, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Douglas R. Kemp, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: May 23, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to amend its answer to allege a defense stating that the claim is barred by a "Waiver of Liability" (Waiver) signed by claimant on July 29, 2008. The Waiver served as a basis for dismissal of an action brought by claimant against private parties in New York State Supreme Court based upon the same bicycle/highway accident at issue in this claim. Defendant further moves for summary judgment dismissing the claim based upon both the Waiver and the purported collateral estoppel effect of the Supreme Court dismissal. Claimant opposes both motions.
The claim arose on August 2, 2008 when claimant was injured while riding her bicycle during a triathlon "Training Camp" with fellow members of the Brooklyn Triathlon Club (BTC) on State Route 28 in the Town of Olive, Ulster County. Specifically, the claim alleges that:
"The bicycle lane . . . had deteriorated from being approximately five feet wide of paved asphalt to a very narrow strip of asphalt surrounded by crumpled pavement and the decrepit bicycle lane ended in a ledge of approximately two to three inches in height.
The claimant was riding on the disintegrated portion of the bicycle lane and attempted to remount the narrow remaining asphalt portion of the bicycle lane when the tire of the claimant's bicycle struck the decrepit area and the two to three inch high ledge causing the claimant's, bicycle to fall over and propelling the claimant into the eastbound lane of moving traffic on Route 28 where the claimant was struck by a vehicle traveling at high speed."
Claimant primarily alleges that defendant negligently failed to properly inspect, maintain and repair the asphalt shoulder which resulted in pavement deterioration that reduced the shoulder's width from between approximately 4 to 5 feet to approximately 1 foot and negligently allowed the shoulder's edge to disintegrate over time to thereby form a vertical, jagged 2 to 3 inch high ledge.
The claim was served on the Attorney General on October 6, 2008 and filed with the Clerk of the Court of Claims on October 6, 2008. Defendant's answer was served on November 10, 2008.
Claimant filed a note of issue and certificate of readiness on June 16, 2010. By this Court's Decision and Order, filed June 6, 2011, defendant's prior motion for summary judgment, requesting dismissal of the claim on the basis of claimant's alleged assumption of risk, was denied. A trial limited to the issue of defendant's liability, if any, for causing or contributing to claimant's accident was scheduled to commence on February 14, 2012.
Counsel for defendant states that on "January 17, 2012, defendant obtained, for the first time, a copy of the waiver signed by claimant from counsel for the Brooklyn Triathlon Club."
Claimant's request for an adjournment of the trial date was consented to by defendant's attorney and granted by the Court on or about February 6, 2012. Assuming that the Court permits the amendment of defendant's answer to include the defense offered by the Waiver, claimant further consents to the Court considering defendant's second motion for summary judgment, despite the motion's potential untimeliness pursuant to CPLR 3212 (a).
CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR R 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]).
Defendant has made a sufficient showing that the amendment may be meritorious. In Conning v Dietrich (32 Misc 3d 1215 (A), 930 NYS 2d 174 [Sup Ct, Kings County, July 15, 2011]), the companion Supreme Court action, the court considered a summary judgment motion seeking dismissal of a complaint brought by claimant Conning against the Brooklyn Triathlon Club and Dietrich (the driver of the vehicle which hit claimant) arising from the very accident at issue in the present claim.
The Conning Supreme Court Decision explained that:
"Defendant BTC organized a triathlon training weekend for the first weekend of August 2008, based in Phoenicia, New York, to train its members in the skills necessary for triathlon events. Plaintiff signed BTC's waiver of liability, on July 29, 2008, before commencing training with BTC" (32 Misc 3d 1215 (A), at 2).
It was at the August 2008 training weekend that claimant sustained the injuries upon which the Court of Claims action is based. The Conning Supreme Court Decision continued:
"[O]n July 29, 2008, [Conning] signed defendant BTC's waiver of liability making her aware of the risk of injury prior to her participation in BTC's triathlon training weekend. This waiver states, in pertinent part:
I ACKNOWLEDGE that there may be traffic or persons ON THE course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING OR PARTICIPATING IN ANY OTHER BTC EVENT. I also ASSUME ANY AND ALL OTHER RISKS associated with participating in BTC events including but not limited to falls, contact and/or effects with other participants, effects of weather including heat and/or humidity, defective equipment, the condition of the roads, water hazards, contact with other swimmers or boats, and any hazard that may be posed by spectators or volunteers. All such risks being known and appreciated by me, I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above ... or of other persons [or] entities.
I AGREE NOT TO SUE any of the person or entities mentioned above ... for any of the claims, losses or liabilities that I have waived, released or discharged herein" (32 Misc 3d 1215 (A), at 7)
The Conning Supreme Court Decision further explained that:
"It is undisputed that plaintiff CONNING, prior to and as a condition of participating in BTC's training weekend, read and executed BTC's waiver of liability. Therefore, she was aware of the risks explicitly stated in the waiver" (32 Misc 3d 1215 (A), at 7).
In opposing defendant's application, claimant has not asserted, much less proved, that she would suffer prejudice as a result of the proposed amendment to defendant's answer.
The non-jurisdictional proposed defenses of Waiver (release) and collateral estoppel are properly considered in a motion to amend an answer (Ficorp, Ltd. v Gourian, 263 AD2d 392, 392-393 [1st Dept 1999], leave to appeal dismissed in part, denied in part 94 NY2d 889 [2000]: "Although CPLR 3211 (e) does deem the defense of release waived if not asserted in the answer or in a motion to dismiss, it can be raised in an amended answer in the absence of prejudice . . . inasmuch as it is not a jurisdictional defense").
For all of the foregoing reasons, defendant's motion to amend its answer to assert that the Waiver claimant signed on July 29, 2008 bars her claim for injuries sustained on August 2, 2008 is granted, and the Court deems defendant's answer to include an affirmative defense asserting the Waiver as a bar to the claim.
The Court notes that defendant did not assert an affirmative defense of collateral estoppel in its answer or in a pre-answer motion as required by CPLR 3211 (e). This is explicable since the Supreme Court Decision concerning the effect of the Waiver was issued on July 15, 2011, well after the filing and service of defendant's answer.
The Court, sua sponte, grants defendant leave to amend its answer to add, and deems defendant's answer to include, an affirmative defense alleging collateral estoppel since it is clear that the affirmative defense did not exist at the time the pleadings were served, the amendment is meritorious and will cause no surprise to claimant (see River Valley Associates v Consolidated Rail Corp., 182 AD2d 974, 976 [3d Dept 1992]; Hummel v Vicaretti, 152 AD2d 779, 780-781 [3d Dept 1989]), appeal dismissed 75 NY2d 809 [1990]; Cave v Kollar, 2 AD3d 386, 387-388 [2d Dept 2003]; Wooten v State of New York, 302 AD2d 70, 74-75 [5th Dept 2002], lv denied 1 NY3d 501 [2003]; Siegel, NY Prac § 404, at 708 [5th ed]: "An actual 'amendment' of the pleadings under CPLR 3025 (c) is not necessary. The court, if it grants the motion, can merely recite in the order that the pleadings are 'deemed' amended to conform to the evidence . . . An appellate court as well as the trial court can conform the pleadings to the proof, and may even do so sua sponte").
Because issue has been joined and disclosure completed, defendant's motion to dismiss the claim, although denominated as arising under both CPLR §§ 3211 and 3212, will be considered solely under CPLR § 3212. Considering defendant's claimed lack of knowledge of the existence of the Waiver until January 17, 2012, and in view of claimant's consent to submission of a second summary judgment motion by defendant, the Court finds that "good cause" for the late summary judgment motion has been shown pursuant to CPLR 3212 (a).
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
Defendant asserts entitlement to summary judgment on the basis of the Waiver and through the issue preclusion effect of the companion Supreme Court Decision and Order in Conning v Dietrich.
Defendant has met its initial burden on the Waiver-based portion of the motion through submission of a copy of the Waiver, along with the claimant's deposition testimony of January 19, 2010 in the Supreme Court action. At her deposition, claimant testified that she read, dated and signed the Waiver as a condition of participating in the "Training Camp" at which she was injured.
At pertinent part, the Waiver provided that:
"I waive, release, AND DISCHARGE from any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kind, including economic losses, which may in the future arise out of or relate to my participating in or my traveling to and from a BTC event, the following persons or entities: . . . all states, cities, counties, or localities in which events or segments of events are held, and the officers, directors, employees, representatives, and agents of any of the above, even if such claims, omissions or liabilities are caused by the negligent acts or omissions of the persons I am hereby releasing or are caused by the negligent acts or omissions of any other person or entity."
The recent decision in Schwartz v Martin (82 AD3d 1201 ), underscores how defendant has satisfied its initial burden of showing that it is entitled to judgment as a matter of law. In Schwartz:
"[T]he plaintiff purchased a racing license from the defendant USA Cycling, Inc. (hereinafter USAC). Each license application included an 'acknowledgment of risk, release of liability, indemnification agreement and covenant not to sue,' which the plaintiff signed. The latest acknowledgment provided, among other things, that the plaintiff released USAC, its affiliates, property owners and public entities, from 'any and all rights and claims including claims arising from the releasees' own negligence . . . and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event . . . in which I may participate as a rider . . . official, volunteer, or in any other manner.' Approximately two months after signing the latest release, the plaintiff was acting as a marshal at a Century Road Club Association (hereinafter CRCA) club race in Central Park, which was a required condition to participating in CRCA club races in Central Park. During the race, the plaintiff allegedly was struck and injured by a bicycle ridden by the defendant Terence Martin, who was not participating in the race (Schwartz, 82 AD3d at 1202)."
Schwartz reversed the order of the lower court which had denied, with leave to renew after completion of discovery, a motion by Century Road Club Association and USA Cycling, Inc. for summary judgment dismissing the complaint. The lower court order had also granted the plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants (Schwartz, 82 AD3d at 1201-1202).
The Schwartz court held, at 1203, as follows:
"The releases clearly and unequivocally expressed the intention of the parties to relieve USAC, its affiliate CRCA, the City of New York, and the New York City Department of Parks and Recreation of liability for their own negligence (see Lago v Krollage, 78 NY2d 95, 99-100 [1991]; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841 [2008]; Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758 [1998]; Castellanos v Nassau/Suffolk Dek Hockey, 232 AD2d 354, 355 [1996]). Further, the releases do not violate General Obligations Law § 5-326. Although the plaintiff purchased a racing license from USAC, he did not pay a fee to use Central Park (see Lago v Krollage, 78 NY2d at 101; Bufano v National Inline Roller Hockey Assn., 272 AD2d 359 [2000]; cf. Petrie v Bridgehampton Rd. Races Corp., 248 AD2d 605, 606 [1998]). While an enforceable release will not insulate a party from grossly negligent conduct (see Sommer v Federal Signal Corp., 79 NY2d 540, 544 [1992]; Gross v Sweet, 49 NY2d 102, 106 [1979]), the alleged acts of the defendants do not rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others (see Goldstein v Carnell Assoc., Inc., 74 AD3d 745, 746-747 [2010]; Brookner v New York Roadrunners Club, Inc., 51 AD3d at 842). Consequently, CRCA and USAC established, prima facie, their entitlement to judgment as a matter of law . . .
In light of our determination, the Supreme Court erred in granting the plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants, as the proposed amendment was patently devoid of merit."
Defendant has satisfied its initial burden with respect to the Waiver portion of its motion for summary judgment.
In addition to relying upon the Waiver itself, defendant argues that claimant is collaterally estopped from relitigating the legal effect of the Waiver. "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Telephone Co., 62 NY2d 494, 500 [1984])
Both the Conning v Dietrich Supreme Court Decision and Order and the present claim and application involve the enforceability of the Waiver. The record shows that claimant had a full and fair opportunity to challenge the Waiver in Supreme Court and was unsuccessful. Defendant has satisfied its burden of showing that claimant is collaterally estopped from relitigating this same issue in the Court of Claims.
The burden thus shifts to claimant to show the existence of triable issues of fact. Claimant attempts to do so through four (4) principal contentions:
1. The Waiver is unenforceable because the training ride during which claimant was injured was not an "event" within the meaning of the Waiver;
2. The Waiver failed to expressly name the State of New York as a beneficiary of the Waiver;
3. BTC breached its duty under the Waiver by failing to give claimant a map of the training route in a timely manner prior to commencement of the ride;
4. The defendant's gross negligence (reckless indifference) is not insulated by the Waiver.
None of these contentions raise a triable issue of fact.
Claimant argues that the Waiver is unenforceable because the training ride during which claimant was injured was not an "event" within the meaning of the Waiver. However, the Waiver itself references the "Training Camp" and claimant testified at deposition that she understood that the very purpose of her reading, dating and signing the Waiver was "for the training camp."
Claimant next urges that BTC vitiated the Waiver's effectiveness by allegedly breaching its duty under the Waiver to give claimant a map of the training route in a timely manner prior to commencement of the bicycle ride. The Court notes that claimant was provided access to the route map prior to commencement of the bicycle ride and that claimant testified at deposition that she read the portion of the Waiver which stated that "I agree that prior to participating in an event I will inspect the race course" but admitted that she did not "inspect the race course" prior to her accident. In any event, there is no proof showing that failure to provide claimant a copy of the route map would have had any affect on claimant's preparation for, or participation in, the training ride or in causing claimant's injuries.
Claimant also contends that the Waiver is ineffective because it failed to expressly name the State of New York as a beneficiary of its protection. Significantly, the Schwartz court held that the release at issue in that case insulated the City of New York from liability for its own negligence even though that defendant was not specifically named in the release (Schwartz, 82 AD3d at 1202-1203):
"[P]laintiff released . . . public entities, from 'any and all rights and claims including claims arising from the releasees' own negligence . . . and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event . . . in which I may participate as a rider . . . official, volunteer, or in any other manner.'. . . The releases clearly and unequivocally expressed the intention of the parties to relieve . . . the City of New York, and the New York City Department of Parks and Recreation of liability for their own negligence."
As set forth earlier, the Waiver claimant signed prior to participating in the "Training Camp" insulates from liability "all states, cities, counties, or localities in which events or segments of events are held." This provision, as in Schwartz, at 1203, "clearly and unequivocally expressed the intention of the parties to relieve" the State of New York from liability for its own negligence.
Finally, claimant cannot rely upon defendant's purported "reckless indifference" to the safety of persons using the roadway in question to avoid the legal import of the Waiver. The claim alleges nothing more than ordinary negligence on the part of defendant and the proof submitted by claimant, on both the previous summary judgment motion and on the instant motion, does not "rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others" (Schwartz, 82 AD3d at 1203). Beyond that, claimant mischaracterizes this Court's previous Decision and Order denying defendant's prior motion for summary judgment as establishing defendant's reckless indifference. This Court's previous Decision and Order did no such thing.
The defendant's motion to amend its answer to allege a defense stating that the claim is barred by a "Waiver of Liability" (Waiver) signed by claimant is granted. Defendant's motion for summary judgment dismissing the claim based upon both the Waiver and upon the collateral estoppel effect of the companion action's Supreme Court Decision and Order is granted. The claim is dismissed.
May 23, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed March 6, 2012;
2. Affirmation of Douglas R. Kemp, dated March 2, 2012, and annexed exhibits;
3. Affirmation of Alan T. Rothbard, dated March 28, 2012, and annexed exhibits;
4. Reply Affirmation of Douglas R. Kemp, dated April 9, 2012.