SACS Appellate Group Wins In First Department, Obtaining Leave To Assert Collateral Estoppel Defense Prior To Trial

In an October decision, the Appellate Division, First Department unanimously reversed the Supreme Court, Bronx County’s order denying defendants’ motion to amend their answer to assert the affirmative defenses of collateral estoppel and res judicata. Prior to trial, defendants obtained a copy of a Workers’ Compensation Board (“WCB”) decision that denied plaintiff’s claim for benefits because he failed to establish traumatic brain injury that was causally related to a workplace accident involving a falling air duct. A lawsuit involving the same workplace incident was subsequently commenced.

After uncovering the WCB decision, defendants moved for leave which plaintiff opposed, contending that an authorization for WCB records had been exchanged during discovery – years before the matter was placed on the trial calendar. Plaintiff further contended that he was prejudiced by the delay as his trial strategy would need to be reformulated at great expense. The Supreme Court denied defendants’ motion, reasoning that defendants knew, or should have known, of the WCB decision for years because their own witness testified at the hearing, plaintiff had exchanged an authorization for the records, and defendants failed to proffer a reasonable excuse for the delay in moving to amend their answer.

On appeal, defendant successfully argued that plaintiff was not unfairly prejudiced by a WCB determination which he had known of for years, but instead failed to properly disclose the decision in candor. Defendants further argued that an affirmative defense – by definition – is detrimental to a plaintiff’s case, and permitting the amendment of a defense plaintiff should have expected from the outset would not hinder his trial preparation. Instead, collateral estoppel would actually narrow the issues to be tried and be less burdensome. The First Department agreed with defendants and reversed the motion court’s decision, allowing defendants to assert the affirmative defense and argue at trial that his personal injury claims were estopped by the prior adverse WCB determination.

The initial briefing was handled by defense counsel A. Joseph Giannini of Cerussi & Spring, P.C., with Jack Watkins and Nick Tam undertaking the briefing on reply.

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