Murray v. City of New York

Decision Date21 December 1977
Citation372 N.E.2d 560,43 N.Y.2d 400,401 N.Y.S.2d 773
Parties, 372 N.E.2d 560 Kathleen MURRAY, as Administratrix of the Estate of James F. Murray, Deceased, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendants.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

COOKE, Judge.

Plaintiff's decedent James F. Murray, while a pedestrian on a Brooklyn street, was struck by a New York City police car manned by two officers responding to a radio call, after it careened from a collision with another vehicle owned by Sarofino Virzi and operated by Mario Virzi (the latter not being served and against whom plaintiffs stipulated to discontinue). Two days later, Murray passed away. At the time of the accident, decedent was employed as a planner with the Economic Development Administration of the City of New York and had been assigned by his superior to make a feasibility study of the Red Hook section of Brooklyn as a possible location for a container port.

In this action for conscious pain and suffering and wrongful death, defendant City of New York did not allege in its answer the exclusivity of workmen's compensation as a remedy nor did it move to amend the pleading before trial. However, after plaintiff presented her witnesses and after her counsel indicated plaintiff would rest, aside from reading a hospital record, the city moved for dismissal based on workmen's compensation as a total bar to suit against the city. Trial court reserved decision. The next day, while the city's proof was being presented and before Virzi called his witnesses, trial court indicated that it had reviewed the workmen's compensation questions and had decided to dismiss as to the city, with the right to plaintiff to reopen, but all attorneys requested that the case "go to its fulfillment". After a verdict was returned in favor of plaintiff against both defendants, liability being apportioned 25% against the city and 75% against Virzi, the Trial Justice granted the city's motion to conform the pleadings to the proof, to set aside the verdict as against the city and to dismiss the complaint as to it. At no time did plaintiff ask to reopen. The Appellate Division reversed and reinstated the verdict against the city, stating that in its view "the trial court improvidently granted the city's motion to conform the pleadings to the proof at the late stage at which the workmen's compensation defense was first interposed."

CPLR 3025 (subd. (b)) is explicit that "(a) party may amend his pleading * * * at any time by leave of court" and that "(l)eave shall be freely given upon such terms as may be just". The matter of allowing an amendment is committed "almost entirely to the court's discretion to be determined on a sui generis basis" (Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3205:4, p. 476), "the widest possible latitude" being extended to the courts (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.14). CPLR 3025 (subd. (c)), dealing with amendments to conform pleadings to the evidence, authorizes courts to "permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just". An application to amend under subdivision (c) is likewise addressed to the sound discretion of the court and should be determined in the same manner and by weighing the same considerations as upon a motion to amend pursuant to subdivision (b), except that under (c) the possibly increased effect on orderly prosecution of the trial might be a factor to be taken into account (see 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3025.26). Where no prejudice is shown, the amendment may be allowed "during or even after trial" (Dittmar Explosives v. A. E. Ottaviano, Inc., 20 N.Y.2d 498, 502, 285 N.Y.S.2d 55, 57, 231 N.E.2d 756, 758; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3205:15, p. 487; cf. Brecher v. Brecher, 27 N.Y.2d 986, 987, 318 N.Y.S.2d 743, 744, 267 N.E.2d 479, 480; Dransfield v. Eastern Seaboard Warehouse Corp., 43 A.D.2d 569, 570, 349 N.Y.S.2d 115, 116). *

There was no operative prejudice here, that is, prejudice attributable to the mere omission to plead the defense in the original answer (Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3025:6, p. 477). When a variance develops between a pleading and proof admitted at the instance or with the acquiescence of a party, such party cannot later claim that he was surprised or prejudiced and the motion to conform should be granted (Donner v. Baker, 11 A.D.2d 905, 203 N.Y.S.2d 56; Embien Props. v. Emmadine Farms, 282 App.Div. 1047, 1048, 126 N.Y.S.2d 74, 75; Berkenstat v. Oliver, 275 App.Div. 679, 86 N.Y.S.2d 682; Audley v. Townsend, 126 App.Div. 431, 434, 110 N.Y.S.2d 575, 577; 6 Carmody Wait 2d, N.Y.Prac., § 34.44, p. 127). Under such circumstances, even appellate courts have taken it upon themselves upon review to amend the pleadings to conform to the proof (see Matter of Pittsford Gravel Corp. v. Zoning Bd. of Town of Perinton, 43 A.D.2d 811, 812, 350 N.Y.S.2d 480, 481, app. dsmd. 34 N.Y.2d 618, 355 N.Y.S.2d 365, 311 N.E.2d 501; Harbor Assoc. v. Asheroff, 35 A.D.2d 667, 668, 317 N.Y.S.2d 897, 898, mot. for lv. to app. den. 27 N.Y.2d 490, 318 N.Y.S.2d 1026, 267 N.E.2d 1281; Di Rosse v. Wein, 24 A.D.2d 510, 511, 261 N.Y.S.2d 623, 624, mot. for lv. to app. den. 16 N.Y.2d 487, 264 N.Y.S.2d 1030, 212 N.E.2d 447; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., pars. 3025.27, 3025.31; cf. Diemer v. Diemer, 8 N.Y.2d 206, 211-212, 203 N.Y.S.2d 829, 168 N.E.2d 654). Here, plaintiff called to the stand decedent's superior in the Economic Development Administration and elicited from him on direct examination that the project decedent was working on at the time he met his death was "a study of the Red Hook Section because at that time the administration was trying to determine the proper location for a container port", that the superior assigned him to go to this area of Brooklyn to do the field work that had to be done, and that the specific thing decedent was doing when the accident happened "was running a survey of that area in order to determine the vacancy rate, the conditions of the buildings and so forth which was part of the information * * * required by...

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