Carriero v. New York City School Construction Authority

Appellate Division of the Supreme Court of New York

Carriero v. New York City School Construction Authority

118 A.D.3d 611, 987 N.Y.S.2d 845

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 2014

StatusPublished

This text of 118 A.D.3d 611 (Carriero v. New York City School Construction Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carriero v. New York City School Construction Authority, 118 A.D.3d 611, 987 N.Y.S.2d 845 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 3, 2013, which denied defendants’ motion for leave to amend their answer, unanimously reversed, on the law and the facts, without costs, and the motion granted.

Leave to amend should have been granted, since the proposed affirmative defense of a setoff has merit (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; see also Herrick v Second Cuthouse, 100 AD2d 952, 953 [2d Dept 1984], affd 64 NY2d 692 [1984]). Indeed, defendants may be successive tortfeasors entitled to a setoff under General Obligations Law § 15-108, given that plaintiff settled another lawsuit 13 years [612]*612ago against different defendants in which, as here, he claimed to be “permanently disabled” from working as an electrician (see Hill v St Clare’s Hosp., 67 NY2d 72, 82-84 [1986]; see also Herrick, 100 AD2d at 953). Defendants may also be entitled to a setoff under CPLR 4545, as the prior settlement may have reimbursed plaintiff for the same “loss of earnings” for which he now sues (CPLR 4545 [a]; see Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]). Plaintiffs argument that evidence of the prior settlement should be excluded at trial is premature, given that this action is only at the pleading stage.

Concur—Sweeny, J.E, Renwick, Andrias, Saxe and Kapnick, JJ.

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 3, 2013, which denied defendants’ motion for leave to amend their answer, unanimously reversed, on the law and the facts, without costs, and the motion granted.

Leave to amend should have been granted, since the proposed affirmative defense of a setoff has merit (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]; see also Herrick v Second Cuthouse, 100 AD2d 952, 953 [2d Dept 1984], affd 64 NY2d 692 [1984]). Indeed, defendants may be successive tortfeasors entitled to a setoff under General Obligations Law § 15-108, given that plaintiff settled another lawsuit 13 years [612]*612ago against different defendants in which, as here, he claimed to be “permanently disabled” from working as an electrician (see Hill v St Clare’s Hosp., 67 NY2d 72, 82-84 [1986]; see also Herrick, 100 AD2d at 953). Defendants may also be entitled to a setoff under CPLR 4545, as the prior settlement may have reimbursed plaintiff for the same “loss of earnings” for which he now sues (CPLR 4545 [a]; see Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]). Plaintiffs argument that evidence of the prior settlement should be excluded at trial is premature, given that this action is only at the pleading stage.

Concur—Sweeny, J.E, Renwick, Andrias, Saxe and Kapnick, JJ.

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Bluebook (online)

118 A.D.3d 611, 987 N.Y.S.2d 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carriero-v-new-york-city-school-construction-authority-nyappdiv-2014.

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