Gibbons v. Suffolk County Boy Scouts Council, Inc., 2007 NY Slip Op 30138(U) (N.Y. Sup. Ct. 3/2/2007)
| Decision Date | 02 March 2007 |
| Docket Number | Mot. No.: 011 MG.,0015825. |
| Citation | 2007 NY Slip Op 30138 |
| Parties | MICHAEL GIBBONS, Plaintiff, v. SUFFOLK COUNTY BOY SCOUTS COUNCIL, INC., BOY SCOUTS OF AMERICA, JIM GRIMALDI, ERIC KOCH, KENNETH D'APICE, ROBERT KOCH, BOY SCOUTS OF AMERICA-NORTHEAST REGION and THE BOY SCOUTS OF AMERICA-NATIONAL COUNCIL, Defendants. |
| Court | New York Supreme Court |
BURNS & HARRIS, ESQS., By: Seth A. Harris, Esq. New York, New York.
GALLAGHER GOSSEEN FALLER & CROWLEY, By: Brian P. Morrissey, Esq., Attys. for Defts., Suffolk Co. Boy Scouts, Council, Inc., Jim Grimaldi and Kenneth, D'Apice, Garden City, New York.
LESTER, SCHWAB, KATZ & O'DWYER, By: Robert N. Dunn, Esq., Attys. for Defts. Boy Scouts of America-Northeast, Region and Boy Scouts of America-National, Council, New York, New York.
ZAKLUKIEWICZ, PUZO &: MORRISSEY, LLP, By: Joseph Puzo, Esq., Attys. for Robert Koch, Islip Terrace, New York.
THOMAS G. NOLAN, ESQ., Atty. for Deft. Eric Koch One Union Square, Aquebogue, New York.
Upon the following papers numbered 1 to 27 read on this motion to amend the answer; Notice of Motion/ Order to Show Cause and supporting papers 1-15; Answering Affidavits and supporting papers 16-26; Other 27; it is,
ORDERED that this motion by the defendants, SUFFOLK COUNTY COUNCIL, INC., BOY SCOUTS OF AMERICA, JIM GRIMALDI and KENNETH D'APICE to amend each of their answers to assert the affirmative defense of Workers Compensation is considered under CPLR 3025 and is granted. Plaintiff and defendant, ERIC KOCH, were each members of the SUFFOLK COUNTY BOY SCOUT COUNCIL INC, BOY SCOUTS OF AMERICA employed as camp counselors at the Baiting Hollow Scout Camp in Calverton, New York. While employed at the camp, they shared a camp cabin with other scouts employed as summer camp staff. Plaintiff alleges that he was sexually assaulted in the camp cabin during the summer of 2002 by ERIC KOCH. JIM GRIMALDI was the director of the camp and KENNETH D'APICE was an executive at the camp. The complaint sounds in common law negligence in failing to properly hire and supervise the staff. Each of the moving defendants seeks to amend their answer to include the affirmative defense that the plaintiff's claim is barred by workers compensation which is the exclusive remedy by an employee against his employer for acts of negligence (Workers Compensation Law §11).
Leave to amend a pleading should be freely given in the absence of prejudice unless the proposed amendment is palpably improper or insufficient as a matter of law (CPLR 302[b]; Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146). In exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom (Haller v. Lopane, 305 A.D.2d 370, 759 N.Y.S.2d 504). When made on the eve of the trial, judicial discretion should be discreet, circumspect, prudent and cautious (Alexander v. Seligman, 131 A.D.2d 528, 516 N.Y.S.2d 260). This action has not yet been scheduled for the selection of a jury. Although defendants proffer no reason why they did not assert the defense earlier, plaintiff has not set forth any specific prejudice other than that which normally results from delay.
Accordingly, the court will examine the viability of this defense. An intentional act perpetrated by the employer directed against its employee is outside the scope of workers compensation exclusivity (Mylroie v....
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