CHARLES v. WILLIAM PENN LIFE INSURANCE COMPANY (2018)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered June 19, 2017, which, to the extent appealed from, granted defendant's motion for leave to file an amended answer with two new affirmative defenses, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting leave to amend the answer to assert a second and third affirmative defense (see CPLR 3025[b] ).  The delay in seeking the amendment was short and there is no indication of any significant trouble or expense that could have been avoided had defendant asserted the proposed defenses earlier, as discovery has been limited (see Powe v. City of Albany, 130 A.D.2d 823, 514 N.Y.S.2d 725 [3d Dept. 1987] ).  The amendments were also based upon the decedent's medical records, which were made available to plaintiff after the first claim denial, but prior to the commencement of this action (see Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [1st Dept. 2007] ).  In any event, discovery can still be taken (see Williams v. Tompkins, 132 A.D.3d 532, 533, 17 N.Y.S.3d 714 [1st Dept. 2015] ).

Plaintiff's argument that defendant waived the proposed affirmative defenses, is unavailing because the defenses are not jurisdictional defenses and can be raised in an amended answer in the absence of prejudice (see Ficorp, Ltd. v. Gourian, 263 A.D.2d 392, 392–393, 693 N.Y.S.2d 37 [1st Dept. 1999], lv dismissed in part, denied in part 94 N.Y.2d 889, 706 N.Y.S.2d 76, 727 N.E.2d 574 [2000] ), and here, all three defenses were based on the decedent's medical records, which plaintiff had prior to the commencement of the action (see Kerrigan v. Metropolitan Life Ins. Co., 117 A.D.3d 562, 563–564, 986 N.Y.S.2d 99 [1st Dept. 2014], lv denied 24 N.Y.3d 912, 2014 WL 7179627 [2014];  see also Masterwear Corp. v. Bernard, 3 A.D.3d 305, 306, 771 N.Y.S.2d 72 [1st Dept. 2004] ).