Opinion
2013-08934
07-22-2015
Max SILVER, et al., respondents, v. SPORTSSTUFF, INC., et al., defendants, Coast Distribution System, Inc., appellant (and third-party actions).
McGaw, Alventosa & Zajac, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellant. Wingate, Russotti, Shapiro & Halperin LLP, New York, N.Y. (Jason M. Rubin and David M. Schwartz of counsel), for respondents.
McGaw, Alventosa & Zajac, Jericho, N.Y. (Dawn C. DeSimone of counsel), for appellant.
Wingate, Russotti, Shapiro & Halperin LLP, New York, N.Y. (Jason M. Rubin and David M. Schwartz of counsel), for respondents.
Opinion In an action to recover damages for personal injuries, etc., the defendant Coast Distribution System, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), dated July 8, 2013, as granted its motion for leave to amend its answer to plead the affirmative defense of setoff as provided by General Obligations Law § 15–108 only to a limited extent.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Coast Distribution System, Inc., is granted in its entirety.
The injured plaintiff, Max Silver, and his wife suing derivatively, commenced this action against the manufacturer, retailer, and alleged distributors of a certain product, alleging, inter alia, strict products liability and breach of warranty. The manufacturer of the product filed for bankruptcy protection, and the plaintiffs received the sum of $84,448.41 in the bankruptcy settlement. One of the alleged distributors, the defendant Coast Distribution System, Inc. (hereinafter Coast), subsequently moved for leave to amend its answer to plead the affirmative defense of setoff as provided by General Obligations Law § 15–108. The Supreme Court granted the motion to the limited extent of permitting Coast to assert the affirmative defense of setoff only with respect to the sum of $84,448.41 the plaintiffs received from the manufacturer.
The Supreme Court correctly concluded that Coast should be permitted to amend its answer to plead the affirmative defense of setoff as provided by General Obligations Law § 15–108 (see Schaffer v. Batheja, 76 A.D.3d 970, 973, 908 N.Y.S.2d 82 ; Frenz v. Mettu, 15 A.D.3d 539, 540, 789 N.Y.S.2d 897 ). However, “in light of the policy that leave to amend pleadings should be liberally given where no prejudice would result thereby to another party,” the Supreme Court erred in limiting Coast's assertion of the affirmative defense (Frederic v. St. John's Episcopal Hosp., 100 A.D.2d 571, 571, 473 N.Y.S.2d 502 ). It is premature, at this stage, to make any determination as to the amount of any potential setoff to which Coast may be entitled (see id. at 572, 473 N.Y.S.2d 502 ).
Accordingly, the Supreme Court should have granted Coast's motion in its entirety.
SKELOS, J.P., HALL, SGROI and BARROS, JJ., concur.