Whalen v. Kawasaki Motors Corp., U.S.A.

• Decision Date: 30 September 1997
• Docket Number: No. 1,1
• Citation: 662 N.Y.S.2d 339,242 A.D.2d 919
• Parties: , 1997 N.Y. Slip Op. 7883 Robert M. WHALEN, Respondent, v. KAWASAKI MOTORS CORP., U.S.A., et al., Defendants, and Robinson Cycle Sales, Inc., Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 339

662 N.Y.S.2d 339

242 A.D.2d 919, 1997 N.Y. Slip Op. 7883

Robert M. WHALEN, Respondent, v. KAWASAKI MOTORS CORP., U.S.A., et al., Defendants, and Robinson Cycle Sales, Inc., Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Sept. 30, 1997.

Saperston and Day, P.C. by Dennis McCoy, Rochester, for defendant-appellant.

Faraci, Lange, Johns, Regan & Schwarz, LLP (Stephen G. Schwarz, of counsel), Rochester, for plaintiff-respondent.

Before DENMAN, P.J., and HAYES, CALLAHAN, DOERR and FALLON, JJ.

MEMORANDUM.

Defendant Robinson Cycle Sales, Inc. (Robinson), appeals from a judgment awarding plaintiff $196,747.04 based on a jury verdict finding that plaintiff had sustained damages of $2,415,000 as a result of an ATV accident; that plaintiff was 92% at fault; and that Robinson, the retailer of the ATV, was liable in the amount of $193,000. In appealing from the judgment and a posttrial order denying a postverdict motion to amend the answer to assert its right to a setoff under General Obligations Law § 15-108, Robinson contends that it is entitled to a complete setoff of liability because of plaintiff's $1,600,000 pretrial settlement with defendants Kawasaki Motors Corp., U.S.A., Kawasaki Motors Manufacturing Corp., U.S.A., and Kawasaki Heavy Industries, Ltd. (Kawasaki defendants). Robinson contends that Supreme Court erred in denying its motion to amend the answer to assert General Obligations Law § 15-108 as an affirmative defense; that Robinson did not waive application of the statute by declining to put in proof concerning an equitable apportionment of fault among Robinson and the Kawasaki defendants; and that, because the settlement amount exceeded the verdict, plaintiff is not entitled to recover against Robinson.

The court should have granted Robinson's motion to amend the answer to assert General Obligations Law § 15-108 as an affirmative defense (see, Ward v. City of Schenectady, 204 A.D.2d 779, 781, 611 N.Y.S.2d 932). Because settlements generally occur after the pleading stage, if the statute is to be pleaded (see generally, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 83-84, 499 N.Y.S.2d 904, 490 N.E.2d 823), it usually must be by way of an amended answer. Here, Robinson's proposed amendment may not be considered late; it closely followed the settlement and plaintiff's purported oral amendment of the complaint. In any event, even late pleading of the statute would not have prejudiced or surprised plaintiff because it was plaintiff's negotiation of the settlement that invoked the statute. Moreover, the statute is not a subject of proof at trial, but is applied by the parties and/or the court outside the presence of the jury in settling the judgment (see, CPLR 4533-b). A motion to amend the pleadings during or even after trial should be granted in the absence of prejudice, and prejudice will not be found in the mere possibility of greater or lesser recovery or liability (see, CPLR 3025[c]; Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23-24, 444 N.Y.S.2d 571, 429 N.E.2d 90, rearg. denied 55 N.Y.2d 801, 447 N.Y.S.2d 436, 432 N.E.2d 138; Ward v. City of Schenectady, supra, at 780-781, 611 N.Y.S.2d 932).

Robinson did not waive application of General Obligations Law § 15-108. A nonsettling tortfeasor's failure to present evidence against the settling tortfeasor or to seek an apportionment of fault...