Opinion
0087852/0071.
June 10, 2008.
Supreme Court Albany County All Purpose Term, May 30, 2008 Assigned to Justice Joseph C. Teresi.
Serrins Associates, LLC, Attorneys for Plaintiff, New York, NY.
Girvin Ferlazzo, P.C., Jonathan E. Hansen, Esq., Attorneys for Defendants, Albany, NY.
By a Notice of Motion defendants seek leave to amend their Answer [CPLR § 3025(b)]. Plaintiff opposes the motion.
This is an action seeking money damages for alleged discrimination against the plaintiff on the basis of her pregnancy and gender and alleged failure to accommodate her temporary disability. The action was filed on November 2, 2007. Service was accomplished on November 16, 2007. Defendants' Answer was served on December 28, 2007. On April 1, 2008, defendant requested that plaintiff's counsel consent to a stipulation for defendants to file an Amended Answer. Plaintiff's counsel declined that request. Plaintiff has now brought on this motion seeking leave of the Court to serve an Amended Answer.
Defendants maintain that the Amended Answer makes "minor changes" in four of the thirty-nine numbered paragraphs, for the purpose of ensuring the most accurate account of the facts on behalf of the defendants. The defendants are not seeking to add or modify any affirmative defense.
The amendments to the Answer deny allegations in the Complaint which had been previously admitted. Ninety (90) days have elapsed since the service of the Answer (December 28, 2007) until defendants' counsel contacted plaintiff's counsel to request a stipulation to allow them the amendments.
More specifically, paragraph eleven of defendants' Answer stated that the defendants "admit that plaintiff had represented that she would return to her full-time possession on April 3, 2007." Defendants wish to change that so that those allegations are denied. Plaintiff maintains that changing this admission to a denial prejudices the plaintiff and eliminates direct evidence in support of the plaintiff's claims.
Defendants further propose to change the Answer in respect to paragraph five of the Answer. Defendants had previously in their Answer admitted that two managers supervise plaintiff during her employment at the defendants' place of business. The proposed amendment seeks to revise that position to assert that plaintiff's other manager, Gary Polacinski, did not supervise the plaintiff. Plaintiff maintains that this changes facts of the case without any explanation demonstrating the need or rational to do so.
Defendants seek to change paragraph fifteen of the Answer which had admitted that "plaintiff's request to resume active employment . . . was denied." The proposed amendment to Answer seeks to allege that the defendant took no action against the plaintiff which plaintiff asserts strengthens the defendants' seventh affirmative defense that any harm to the plaintiff was a direct and approximate result of her own actions.
The Court notes that the motion in this case is supported by an Attorney's Affidavit only. There is no affidavit submitted by anyone with personal knowledge of the facts to substantiate the changes sought in the Amended Answer or to provide the Court with any factual basis for those changes, or a rational basis why those denials or admissions were not made in the original Answer. A selected portion of plaintiff's deposition transcript does not establish a factual basis for all the proposed changes in the Answer.
The case law is clear. Leave to amend pleadings shall be freely given absent prejudice or surprise resulting directly from the delay. CPLR 3025(b); Fahey v. County of Ontario, 44 NY2d 934, 935. Here discovery is substantially completed with the depositions of the parties having been conducted. As for any amendment to a pleading where a leave of the Court is required, such a motion must be accompanied by an affidavit from one with knowledge of the underlying facts not by an attorney lacking such knowledge. Dougherty v. Wade Lupe Construction Company, Inc., 98 AD2d 868, 869 (Third Dept. 1983). Such an affidavit is also necessary to explain the necessity and to excuse a reason for such an amendment. Polak v. Schwenk, 115 AD2d 142, 143 (Third Dept. 1985); Agway Inc. v. North Clymer Farm Service Inc., 291 AD2d 818, 820 (Fourth Dept., 2002).
Here, defendants' attempt to deny factual allegations of the complaint and other facts which had originally been admitted. This results in prejudice to plaintiff and does not satisfy the predicate requirement of an affidavit of a person with knowledge to support the granting of the motion.
Based upon the record before the Court, ths Court is constrained to deny defendants' Motion without costs.
All papers, including this Decision and Order are being returned to the attorneys for the plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provision of that section respecting filing, entry and notice of entry.
So Ordered.
PAPERS CONSIDERED:
1. Notice of Motion dated May 6, 2008 with attached Affirmation of Jonathan E. Hansen, Esq. dated May 6, 2008 with attached Exhibits A — C.
2. Affirmation in Opposition to the Motion of Ann MacAdangdang, Esq. dated May 20, 2008 with attached Exhibits 1 4.
3. Reply Affirmation of Jonathan E. Hansen, Esq. dated May 29, 2008 with attached Exhibits A and B.