Civil Serv. Emps. Ass'n v. Cnty. of Nassau

• Citation: 43 N.Y.S.3d 390,144 A.D.3d 1075,2016 N.Y. Slip Op. 08038
• Parties: CIVIL SERVICE EMPLOYEES ASSOCIATION, etc., et al., appellants, v. COUNTY OF NASSAU, respondent.
• Decision Date: 30 November 2016
• Court: New York Supreme Court Appellate Division

144 A.D.3d 1075

43 N.Y.S.3d 390

2016 N.Y. Slip Op. 08038

CIVIL SERVICE EMPLOYEES ASSOCIATION, etc., et al., appellants,

v.COUNTY OF NASSAU, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 30, 2016.

Louis D. Stober, Jr., LLC, Garden City, NY (Albina Kataeva of counsel), for appellants.

Carnell T. Foskey, County Attorney, Mineola, NY (Robert F. Van der Waag and Samantha Goetz of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for breach of a collective bargaining agreement, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Murphy, J.), entered April 30, 2014, which granted the defendant's motion for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendant's motion for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred is denied.

The plaintiff Richard Kramer is a member of the plaintiff Civil Service Employees Association, A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O., by its Local 830 (hereinafter the CSEA), and is employed by the defendant County of Nassau as a Civil Engineer II in the County's Department of Public Works. By summons and complaint filed January 2, 2008, they commenced this action against the County alleging, inter alia, breach of contract. They alleged that the County violated Kramer's rights under a collective bargaining agreement between the CSEA and the County when it promoted a County employee other than Kramer to the position of Superintendent of Buildings for the Division of Sanitation & Water Supply. In February 2014, after discovery had been completed, the matter had been certified ready for trial, and the note of issue filed, the County moved for leave to amend its answer to assert the statute of limitations as a defense and for summary judgment dismissing the complaint as time-barred. The plaintiffs opposed the motion, arguing that they had been prejudiced by the County's delay in seeking leave. The Supreme Court granted the County's motion, and the plaintiffs appeal.

The County waived a defense based on the statute of limitations by not raising that defense in its answer (see CPLR 3211[e] ; Deutsche Bank Trust Co. Ams. v. Cox, 110 A.D.3d 760, 762, 973 N.Y.S.2d 662 ). Nevertheless, defenses waived under CPLR 3211(e) can be interposed in an answer amended by leave of the court pursuant to CPLR 3025(b) (see Bank of N.Y. Mellon v. Aquino, 131 A.D.3d 1186, 1187, 16 N.Y.S.3d 770 ; Onewest, F.S.B. v. Goddard, 131 A.D.3d 1028, 1029, 17 N.Y.S.3d 142 ). " ‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " (Calamari v. Panos, 131 A.D.3d 1088, 1089, 16 N.Y.S.3d 824, quoting Lucido v. Mansuco, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238 ). " ‘A determination whether to grant such leave is within the Supreme Court's broad discretion, and the exercise of that discretion will not be lightly disturbed’ " (Krigsman v. Cyngiel, 130 A.D.3d 786, 786, 14 N.Y.S.3d 94, quoting Gitlin v. Chirinkin, 60 A.D.3d 901, 902, 875 N.Y.S.2d 585 ; see Murray v. City of New York, 43 N.Y.2d 400, 405, 401 N.Y.S.2d 773, 372 N.E.2d 560 ). " ‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered’ " (Yong Soon Oh v. Hua Jin, 124 A.D.3d 639, 640, 1 N.Y.S.3d 307, quoting Cohen v. Ho, 38 A.D.3d 705, 706, 833 N.Y.S.2d 542 ; see Pelligrino v. New York City Tr. Auth., 177 A.D.2d 554, 576 N.Y.S.2d 154 ). " ‘[W]here the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent and cautious' " (Yong Soon Oh v. Hua Jin, 124 A.D.3d at 640–641, 1 N.Y.S.3d...