DECISION AND ORDER The facts of this matter are set forth in a prior decision of this Court and will not be repeated at length (68 Misc 3d 1205[A], 2019 NY Slip Op 51017[U] [Sup Ct, Warren County 2019]). As relevant here, plaintiff was injured on August 9, 2010 in the course of his employment with defendant. Plaintiff was unable to return to work as a result and, on August 10, 2011, defendant advised him that his employment had been terminated. Plaintiff subsequently commenced this action on April 2, 2012, alleging five causes of action: (1) that his employment was wrongfully terminated; (2) that defendant breached the collective bargaining agreement governing his employment; (3) that defendant owes him certain compensation and benefits under the terms of this collective bargaining agreement and it’s Employee Manual; (4) that defendant violated the Civil Service Law; and (5) that defendant violated 42 USC §1983. Issue was joined with the filing of an answer on July 20, 2012. Discovery and depositions were subsequently completed, and, on August 31, 2018, plaintiff filed the note of issue and certificate of readiness. On October 25, 2018, plaintiff filed a motion for summary judgment on liability with respect to his first, fourth and fifth causes of action, and defendant then filed a motion for summary judgment seeking to dismiss the complaint on November 16, 2018. By Decision and Order dated June 20, 2019, plaintiff’s motion was denied in its entirety and defendant’s motion was granted to the extent that plaintiff’s second and third causes of action were dismissed, with the motion otherwise being denied (2019 NY Slip Op 51017[U], at *6). A nonjury trial began on February 20, 2020, with the trial to continue following the deposition of plaintiff’s treating physician. The COVID-19 pandemic then hit weeks later and this deposition was postponed. Presently before the Court is (1) plaintiff’s motion in limine seeking, inter alia, an Order precluding defendant from offering certain evidence at trial; and (2) defendant’s motion seeking leave to amend its answer. These motions will be addressed ad seriatim. Plaintiff’s Motion in Limine Plaintiff moves for an Order precluding defendant “from offering any evidence or proof that [it] complied with [the] obligations set forth in §71 of the Civil Service Law” because (1) the record demonstrates that defendant failed to comply with Civil Service Law §71 and its corresponding regulations; and (2) defendant failed to provide certain documents requested by plaintiff. At the outset, plaintiff is clearly using this motion in limine as a vehicle to get certain arguments before the Court that he failed to make in support of his motion for summary judgment — namely, that defendant did not comply with 4 NYCRR 5.9, the regulations governing Civil Service Law §71.1 In this regard, the motion in limine is more akin to a successive motion for summary judgment, which motions should not be entertained unless they are based on newly discovered evidence or the moving party demonstrates other sufficient cause for their consideration (see Trimble v. City of Albany, 169 AD3d 1293, 1294 [2019]; Green Harbour Homeowners Assn., Inc. v. Ermiger, 128 AD3d 1142, 1143 [2015]). Here, 4 NYCRR 5.9 — enacted in 1989 — certainly does not constitute newly discovered evidence. Furthermore, plaintiff has not offered any reason for his failure to assert violations of 4 NYCRR 5.9 in support of his original motion, aside from the fact that he was admittedly unaware of the regulations. It must also be noted that the deadline for filing dispositive motions — as set forth in the Preliminary Conference Stipulation and Order entered on August 17, 2017 — was November 30, 2018. Under the circumstance’s plaintiff is not entitled to an Order precluding defendant from offering evidence that it complied with Civil Service Law §71 because the record demonstrates that defendant did not comply with the statute and its corresponding regulations. Additionally, plaintiff is not entitled to an Order precluding defendant from offering evidence that it complied with Civil Service Law §71 because it failed to provide certain requested documents. In this regard, counsel for plaintiff sent correspondence to counsel for defendant on September 4, 2018 requesting “a copy of the entire Tim Shields file as it relates to the Town Clerk file and Highway Department file.” Counsel for plaintiff then sent follow-up correspondence on September 5, 2018 and October 16, 2018, respectively, again requesting the file.2 That being said, no formal discovery request was ever made pursuant to CPLR 3120. It is thus questionable whether sanctions are even available under CPLR 3126 (see Rosado v. Edmundo Castillo Inc., 54 AD3d 278, 279 [2008]). Moreover, counsel for plaintiff has failed to submit an affirmation of good faith in accordance with Uniform Rules for Trial Courts (22 NYCRR) §202.7 (c). Defendant’s Motion to Amend Defendant is moving to amend its answer to assert an affirmative statute of limitations defense. In this regard, defendant contends that plaintiff’s claims under Civil Service Law §71 had to be brought in the context of a CPLR article 78 proceeding, with the statute of limitations for such a proceeding having passed on December 10, 2011 — several months prior to the commencement of this action. “A party may amend [its] pleading…at any time by leave of court” (CPLR 3025 [b]). “When leave is sought to amend a pleading, ‘the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’” (Lakeview Outlets Inc. v. Town of Malta, 166 AD3d 1445, 1446 [2018], quoting Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc., 161 AD3d 1263, 1265-1266 [2018] [internal quotation marks and citations omitted]; see Palmatier v. Mr. Heater Corp., 156 AD3d 1167, 1169 [2017]; NYAHSA Servs., Inc., Self-Ins. Trust v. People Care Inc., 156 AD3d 99, 102 [2017]). Notably, “[d]elay alone…does not warrant denial of a motion for leave to amend” (Lakeview Outlets Inc. v. Town of Malta, 166 AD3d at 1446; see Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 411 [2014]; Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959 [1983]; Tri-Tec Design, Inc. v. Zatek Corp., 123 AD3d 420, 420 [2014]). The party opposing the motion must also establish prejudice, which in this context exists “‘where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment’” (Lakeview Outlets Inc. v. Town of Malta, 166 AD3d at 1446, quoting Whalen v. Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 [1998]; see Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Crawford v. Burkey, 93 AD3d 1134, 1135 [2012]; Kocourek v. Booz Allen Hamilton Inc., 85 AD3d 502, 504 [2011]). Here, defendant is correct that a challenge to a determination under Civil Service Law §71 “must take the form of a CPLR article 78 petition” (Lazzari v. Town of Eastchester, 20 NY3d 214, 219 [2012]). As such, there is no doubt as to the merit of the proposed amendment and as much is conceded by plaintiff during oral argument. That being said, defendant waited over eight years to amend its answer to assert this statute of limitations defense, with plaintiff contending that he will now suffer prejudice if the amendment is permitted. Specifically, plaintiff contends that “the parties are beyond the eve of trial,” with each having invested substantial time and resources in the case. While this argument is compelling, it is nonetheless problematic. In Disla v. Biggs (___ AD3d ___, 2021 NY Slip Op 00906 [2021]), the Appellate Division addressed a similar argument, stating as follows: “The motion court providently exercised its discretion in allowing the City to amend its answer to assert a statute of limitations defense with respect to [plaintiff's] conscious pain and suffering claim and in dismissing [the] claim on [that] basis.3 [Plaintiff] does not dispute that the defense has merit. Although [defendant] waited nearly six years after commencement of [the] action to move to amend its answer, this delay in seeking to amend a pleading is not dispositive, as plaintiff failed to establish prejudice resulting therefrom. Although the parties have already completed extensive discovery and litigated a summary judgment motion, they would have done so even if the statute of limitations defense had been raised earlier, as the defense affects only one of plaintiff’s claims (for conscious pain and suffering) and his remaining claim (for wrongful death) is based on the same underlying facts” (id. at *2-3 [citations omitted]). The same rationale applies here. Although the parties have completed discovery and litigated summary judgment motions, they would have done so even if the statute of limitations defense had been raised earlier, as the defense affects only plaintiff’s claims pursuant to Civil Service Law §71. Indeed, plaintiff’s second and third causes of action — which were dismissed in June 2019 — alleged breach of contract, and his fifth cause of action — which remains — alleges a violation of 42 USC §1983. All of these causes of action are based on the same underlying facts. Plaintiff has failed to establish the requisite prejudice (see id. at *3; compare Cseh v. New York City Tr. Auth., 240 AD2d 270, 271-272 [1997]). Therefore, having considered — with respect to plaintiff’s motion — the Affidavit of William J. White, Esq. with Exhibits “A” through “F” attached thereto, sworn to July 9, 2020, submitted in support of the motion; Affidavit of Timothy J. Shields, sworn to June 26, 2020, submitted in support of the motion; and Affirmation of John D. Aspland, Jr., Esq. with Exhibits “A” through “D” attached thereto, dated August 25, 2020, submitted in opposition to the motion; And having considered — with respect to defendant’s motion — the Affirmation of John D. Aspland, Jr., Esq. with Exhibits “A” through “C” attached thereto, dated August 25, 2020, submitted in support of the motion; Memorandum of Law of John D. Aspland, Jr., Esq., dated August 25, 2020, submitted in support of the motion; Affidavit of William J. White, Esq., sworn to September 30, 2020, submitted in opposition to the motion; and Memorandum of Law of William J. White, Esq., dated September 30, 2020, submitted in opposition to the motion; the Affirmation of John D. Aspland, Jr., Esq. dated October 8, 2020, submitted in further support of the motion; And oral argument having been held with respect to both motions on March 4, 2021 with William J. White, Esq. appearing on behalf of plaintiff and John D. Aspland, Jr., Esq. appearing on behalf of defendant, it is hereby ORDERED that plaintiff’s motion in limine is denied in its entirety; and it is further ORDERED that defendant’s motion to amend it answer to add the affirmative defense of statute of limitations is granted and defendant is directed to serve its amended answer within thirty (30) days of the date of this Order, and is further ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied. The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated June 26, 2020 and August 25, 2020 and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513. Dated: March 5, 2021
