Norwood v. City of New York

• Decision Date: 21 April 1994
• Citation: 203 A.D.2d 147,610 N.Y.S.2d 249
• Court: New York Supreme Court — Appellate Division
• Parties: Jeffrey R. NORWOOD, M.D., Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant, New York City Health & Hospitals Corporation, et al., Defendants-Appellants.

Page 249

610 N.Y.S.2d 249

203 A.D.2d 147

Jeffrey R. NORWOOD, M.D., Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant New York City Health & Hospitals Corporation, et al Defendants-Appellants.

Supreme Court, Appellate Division First Department.

April 21, 1994.

Before MURPHY, P.J., SULLIVAN, ROSENBERGER, ROSS and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (William J. Davis, J.), entered July 9, 1992, which, upon a jury verdict, adjudged that the plaintiff recover from the defendants the sum of $1,005,355, unanimously reversed, on the law, the facts and in the exercise of discretion, the judgment is vacated, the defendants' motion to amend their answer is granted and the matter is remitted for a new trial, without costs.

The plaintiff, a former medical resident, instituted this action alleging that the defendants made certain libelous and slanderous remarks concerning his professional qualifications to the American Board of Internal Medicine and to the Long Island Jewish Medical Center where he had been conditionally accepted for a fellowship following his residency at Harlem Hospital. The jury found in his favor and awarded compensatory damages for past and future loss of income. Punitive damages were also assessed against the defendant Dobkin, the director of the residency program.

While we agree with the plaintiff that the allegations in the complaint were set forth with sufficient particularity (see, CPLR 3016[a]; Rossignol v. Silvernail, 185 A.D.2d 497, 586 N.Y.S.2d 343, lv. denied 80 N.Y.2d 760, 591 N.Y.S.2d 138, 605 N.E.2d 874), the Supreme Court abused its discretion in denying the defendants' motion to amend their answer to assert the affirmative defense of qualified privilege.

While the decision to allow or disallow an amendment to the pleadings is committed to the court's discretion (Murray v. City of New York, 43 N.Y.2d 400, 404-405, 401 N.Y.S.2d 773, 372 N.E.2d 560, rearg. dsmd. 45 N.Y.2d 966, 412 N.Y.S.2d 1025, 384 N.E.2d 692), "[p]ermission to amend pleadings should be 'freely given' (CPLR 3025, subd [b]" (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164).

The fact that the defendants moved to amend their answer just prior to opening statements was no bar to granting leave. A court may grant leave to amend pleadings "at any time" (CPLR 3025[b]. " 'Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side ...' (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3025:5, p. 356)" (Edenwald Contr. Co. v. City of New York, supra, 60 N.Y.2d at 959, 471 N.Y.S.2d 55, 459 N.E.2d 164; Suarez v. City of New York, 169 A.D.2d 540, 564 N.Y.S.2d 393; Detrinca v De Fillippo, 165 A.D.2d 505, 508, 568 N.Y.S.2d 586). In determining whether to grant a motion to amend an answer, the court should consider the merit of the proposed defense and whether the plaintiff will be prejudiced by the delay in raising it (Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097; Herrick v. Second Cuthouse Ltd., 64 N.Y.2d 692, 485 N.Y.S.2d 518, 474 N.E.2d 1186; Fahey v. County of Ontario, 44 N.Y.2d 934, 408 N.Y.S.2d 314, 380 N.E.2d 146).

It cannot be said that the proposed defense lacked merit. The qualified privilege defense cloaks certain statements, even if defamatory, with a conditional privilege, in order to serve a societal interest in encouraging people who have a legal or moral duty to respond to inquiries to communicate freely (see, Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344; Stukuls v. State of New York, 42 N.Y.2d 272, 278-279, 397 N.Y.S.2d 740, 366 N.E.2d 829). The privilege attaches when the statement is made between individuals who share a common interest and can be overcome only by a showing of malice on the part of the declarant (Liberman v. Gelstein, supra, 80 N.Y.2d at 437, 590 N.Y.S.2d 857, 605 N.E.2d 344). The communications at issue were made in the context of graduate medical education and involved...