IMTIAZ v. Irene Moreira, et al., appellants. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Irene Moreira and Carlos L. Moreira appeal from an order of the Supreme Court, Kings County (Rupert V. Barry, J.), dated January 28, 2025. The order denied those defendants' motion for leave to amend their answer to assert the emergency doctrine as an affirmative defense and for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the motion of the defendants Irene Moreira and Carlos L. Moreira for leave to amend their answer to assert the emergency doctrine as an affirmative defense and for summary judgment dismissing the complaint insofar as asserted against them is granted.

The defendant Irene Moreira (hereinafter Irene) allegedly was operating a vehicle owned by the defendant Carlos Moreira (hereinafter the Moreira vehicle), when, according to Irene, an unidentified vehicle suddenly attempted to change lanes without warning in front of her. The unidentified vehicle struck the driver's side of the Moreira vehicle and both vehicles immediately came to a stop. “Seconds” later, the Moreira vehicle was struck in the rear by the plaintiff's vehicle. The plaintiff's vehicle was then struck in the rear by a vehicle operated by the defendant Ygnacio Tapia. The unidentified vehicle fled the scene of the accident.

The plaintiff commenced this action against Irene and Carlos Moreira (hereinafter together the defendants), among others, to recover damages for personal injuries she allegedly sustained as a result of the accident. The defendants filed an answer to the complaint and subsequently moved for leave to amend their answer to include the emergency doctrine as an affirmative defense and for summary judgment dismissing the complaint insofar as asserted against them. In an order dated January 28, 2025, the Supreme Court denied the motion. The defendants appeal.

Permission to amend a pleading should be “freely given” (CPLR 3025[b]; see Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959). Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party (see Jeboda v. Danza, 133 AD3d 569). The burden of establishing prejudice is on the party opposing the amendment (see Onewest Bank, FSB v. N & R Family Trust, 200 AD3d 902, 903).

Here, the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiff (see CPLR 3025[b]). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for leave to amend their answer to assert the emergency doctrine as an affirmative defense.

The Supreme Court also should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants established, prima facie, that Irene was not negligent in bringing the Moreira vehicle to a stop in response to an emergency situation not of her own making and that she was not at fault in causing the accident (see Kinard v. New York City Tr. Auth., 233 AD3d 665, 666; Leonard v. Pomarico, 137 AD3d 1085, 1086;).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to submit an affirmation from a person with personal knowledge of the facts denying Irene's version of the accident (see Merino v. Ferrante, 241 AD3d 1449, 1451; Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736, 737). Additionally, that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them was not premature (see Merino v. Ferrante, 241 AD3d at 1451).

Accordingly, we affirm the order appealed from.

BARROS, J.P., IANNACCI, GOLIA and OTTLEY, JJ., concur.