Lisa M. Oakes, Individually and as Executrix of the Estate of Daniel C. Oakes, Deceased, Respondent,v.Rajnikant Patel, M.D., et al., Appellants.BriefN.Y.February 14, 20130 To be Argued by: RONALD J. WRIGHT, ESQ. Estimated Time for Argument: (30 Minutes) STATE OF NEW YORK Court of Appeals LISA M. OAKES, Individually and as Executrix of the Estate of DANIEL C. OAKES, Deceased, Plaintiffs-Respondents, vs. RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D., and KALEIDA HEALTH as Successor In Interest to MILLARD FILLMORE HOSPITALS d/b/a MILLARD FILLMORE SUBURBAN HOSPITAL, Defendants-Appellants. Appellate Division Docket Number: CA 10-00367. Erie County Index No.: I-2000/9788. BRIEF FOR PLAINTIFFS-RESPONDENTS LISA M. OAKES, Individually and as Executrix of the Estate of DANIEL C. OAKES, Deceased LAW OFFICE OF FRANCIS M. LETRO Attorneys for Plaintiffs-Respondents Lisa M. Oakes, Individually and as Executrix of the Estate of Daniel C. Oakes, Deceased The Dun Building, 10th Floor 110 Pearl Street Buffalo, New York 14202 Telephone: (716) 852-1234 Facsimile: (716) 853-2930 RONALD J. WRIGHT, ESQ. Of Counsel Date of Completion: August 6, 2012 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iv CASES ......................................................................................................... iv STATUTES.................................................................................................. ix OTHER AUTHORITIES ............................................................................. ix QUESTIONS PRESENTED .................................................................................... 1 PROCEDURAL HISTORY ..................................................................................... 3 COUNTERSTATMENT OF FACTS ...................................................................... 9 POINT I ...................................................................................................... 10 MR. OAKES’ ATTEMPTS TO RECEIVE DIAGNOSIS AND TREATMENT POINT II ..................................................................................................... 15 NEGLIGENCE OF KALEIDA AND DENT POINT III .................................................................................................... 20 MR. OAKES’ INJURIES AND DISABILITIES FOLLOWING HIS STROKE POINT IV .................................................................................................... 27 FACTUAL BACKGROUND CONCERNING KALEIDA’S POST-TRIAL MOTION TO AMEND ITS PLEADINGS ARGUMENT ........................................................................................................... 31 POINT I ...................................................................................................... 32 THE ADDITUR AMOUNT ISSUE WAS NOT PRESERVED BEFORE THE TRIAL COURT AND WAS WAIVED ON APPEAL BY THE DEFENDANTS’ FAILURE TO ADDRESS THE ISSUE ii A. The Defendants did not preserve any argument regarding the excessiveness of the additur amount to the Trial Court ..... 33 B. The amount of the additur was not raised in Defendants’ briefs .................................................................................. 38 C. Defendants’ Challenge to the amount of the additur was not implicitly preserved by their refusal to stipulate to the additur ........................................................................................... 43 POINT II .............................................................................................. …. 49 A REJECTED ADDITUR OR REMITTUR FOLLOWED BY A SECOND TRIAL IS NOT SUBJECT TO APPELLATE REVIEW A. No right to a proper additur remittitur exists because the use of such stipulations is purely a discretionary act ............... 50 B. No precedent exists for the review of an additur or remittitur following its rejection and the completion of a second trial .. ........................................................................................... 53 C. The new rule proposed by the dissent is unworkable in practice ............................................................................... 58 D. The propriety of the amount of the amount of an additur or remittitur in a prior non-final order is not brought up for review from a final judgment ............................................ 61 POINT III .................................................................................................... 63 THE TRIAL COURT AND THE APPELLATE DIVISION DID NOT ABUSE THEIR DISCRETION BY DENYING DEFENDANTS’ LEAVE TO AMEND THEIR ANSWERS A. The proofs of claim were not accepted in their entirety and were therefore null and void .............................................. 65 B. No abuse of discretion occurred because the proofs of claim cannot be applied mechanically due to questions of fact requiring discovery and due to a lack of excuse for the delay in seeking leave ................................................................. 73 C. The Plaintiffs were prejudiced by the Defendants’ delay in asserting the defense of release…………………………82 iii POINT IV .................................................................................................... 90 THE TRIAL COURT PROPERLY PRECLUDED DEFENDANTS FROM RE-LITIGATING CAUSATION DURING THE SECOND DAMAGES ONLY TRIAL WHERE CAUSATION WAS DETERMINED IN FULL AT THE FIRST TRIAL A. The Trial Court properly treated causation and damages as distinct issues which have been conflated by the Defendants .............................................................. 93 B. The Trial Court properly limited the second trial to issues of damages without re-litigating causation ............. 98 C. The extent of damages was fully proved by the Plaintiff.. .......................................................................... 104 POINT V ..................................................................................................... 112 KALEIDA WAS PROPERLY FOUND TO BE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF DENT NEUROLOGICAL INSTITUTE CONCLUSION……………………………………………………………………..121 iv TABLE OF AUTHORITIES CASES Page Adams v. Genie Indus., Inc., 14 NY3d (2010) .............................................................................................. 48 Adamy v. Ziriakus, 92 NY2d 396 (1998) ....................................................................................... 113 Arias-Paulino v. Academy Bus Tours, Inc. 48 AD3d 350 (1st Dept 2008) ........................................................................ 81 Atkinson v. County of Oneida, 57 NY2d 1044 (1982) ..................................................................................... 62 Beck v. Spinner’s Recreational Ctr., Inc., 78 AD3d 1695 (4th Dept. 2010) ..................................................................... 108, 109 Best v. Yutaka, 90 NY2d 833 (1997) ....................................................................................... 61, 84 Buffalo Electric Co. v. State, 14 NY2d 453 (1964) ....................................................................................... 62 Burns v. Fernandez, 401 So2d 1033 (La Ct App 4th Cir 1981) ...................................................... 73 Camacho v. Rochester City Sch. Dist., 20 AD3d 916 (4th Dept 2005) ........................................................................ 42 Cameron v. 1199 Hous. Corp., 208 AD2d 454 (1st Dept 1994) ...................................................................... 88 Carlos v. W.H.P. 19 LLC, 301 AD2d 423 (1st Dept 2003) ....................................................................... 42, 55 Carlson v. Porter, 53 AD3d 1129 (4th Dept 2008) ........................................................................ 48 Carter v. Shah, 31 AD3d 1151 (4th Dept 2006) ...................................................................... 56, 57 v Cohen v. Hallmark Cards, Inc., 45 NY2d 893 (1978) ....................................................................................... 113 Crawford v. Town of Hamburg, 19 AD2d 100 (4th Dept 1963) ........................................................................ 100 Dawley v. McCumber, 45 AD3d 1399 (4th Dept 2007) ...................................................................... 82 Deitsch Textiles, Inc. v. New York Prop. Ins., 62 NY2d 999 (1984) ....................................................................................... 46, 53 Deitsch Textiles, Inc. v. New York Prop. Ins., 93 AD2d 853 (2d Dept 1983) ......................................................................... 46, 53 Deitsch Textiles, Inc. v. New York Prop. Ins., 111 AD2d 211 (2d Dept 1985) ....................................................................... 46, 53 DiIorio v. Gibson & Cushman of New York, Inc., 166 AD2d 334 (1st Dept 1990)...................................................................... 78, 81 Doviak v. Lowe’s Home Center, Inc., 63 AD3d 1348 (3d Dept 2009) ....................................................................... 42 Dunham v. Village of Canisteo, 303 NY 498 (1952) ......................................................................................... 94 Edenwald Contracting Co. v. City of New York, 60 NY2d 957 (1983) ....................................................................................... 77 England v. Sanford, 78 NY2d 928 (1991) ....................................................................................... 64, 65 Feathers v. Walter S. Kozdrankski, Inc., 129 AD2d 975 (4th Dept 1987) ...................................................................... 50 Gerbino v. Tinseltown USA, 13 AD3d 1068 (4th Dept 2004) ...................................................................... 44, 45, 47, 53, 54 Gray v. Jaeger, 49 AD3d 287 (1st Dept 2008) ........................................................................ 104 Infante v. City of New York, 258 AD2d 333 (1st Dept 1999) ...................................................................... 46, 54 vi Jablonski v. County of Erie, 286 AD2d 927 (4th Dept 2001) ...................................................................... 63, 64 Kerker v. Hurwitz, 163 AD2d 859 (4th Dept 1990) ...................................................................... 120 Keyser v. KB Toys, Inc., 82 AD3d 713 (2d Dept 2011) ......................................................................... 42 Kmiotek v. Chaba, 60 AD3d 1295 (4th Dept 2009) ...................................................................... 42 Koken v. Reliance Ins. Co., 586 Pa 269 A2d 70 (2006) .............................................................................. 72 Ladd v. Parkhurst, 87 AD2d 971 (4th Dept 1982) ....................................................................... 52 Libman v. McKnight, 204 AD2d 856 (3d Dept 1994) ....................................................................... 42, 55, 59 Marshall v. Lomedico, 292 AD2d 669 (3d Dept 2002) ....................................................................... 42 Matter of McIntosh v. State of New York, 7 AD3d 890 (3d Dept 2004) ........................................................................... 75 Mayers v. D’Agostino, 58 NY2d 696 (1982) ....................................................................................... 53, 63, 64, 74, 75 McCahill v. New York Transp. Co., 201 NY 221 (1911) ......................................................................................... 93, 94, 96, 97 McDonald v. 450 W. Side Partners, LLC, 70 AD3d 490 (1st Dept 2010) ........................................................................ 42 McGovern v. Attie, 37 AD2d 961 (2d Dept 1971) ......................................................................... 95, 96 Melito v. Genesee Hospital, 167 AD2d 842 (4th Dept 1990) ...................................................................... 95, 96 Merrill v. Albany Medical Center Hospital, 71 NY2d 990 (1988) ....................................................................................... 39 vii Misicki v. Caradonna, 12 NY3d 511 (2009) ....................................................................................... 39, 40 Monahan v. Weichart, 82 AD2d 102 (4th Dept 1981) ........................................................................ 94, 95, 96 Morris v. Queens Long Island Medical Group, 49 AD3d 827 (2d Dept 2008) ......................................................................... 64 Murphy v. Lewry, 235 AD2d 968 (3d Dept 1997) ...........................................................................48 Murray v. City of New York, 43 NY2d 400 (1977) ....................................................................................... 63, 88, 89 Murray v. City of New York, 51 AD3d 502 (1st Dept 2008) ........................................................................ 74, 75 Niagara Vest, Inc. v. Alloy Briquetting Corp., 244 AD2d 892 (4th Dept 1997) ...................................................................... 104 Oakes v. Patel, 87 AD3d 816 (4th Dept 2011)…………………………………………… 32, 33, 34, 39, 47, 54, 55, 57, 65, 83 O’Brien v. Covert, 187 AD2d 419 (2d Dept 1992) ....................................................................... 45, 54 O’Connor v. Papertsian, 309 NY 465 (1956) ......................................................................................... 50, 51, 52, 59, 60 Olmstead v. Pizza Hut of America, Inc., 81 AD3d 1223 (3d Dept 2011) ....................................................................... 108, 109 Orlikowski v. Cornerstone Community Fed. Credit Union, 55 AD3d 1245 (4th Dept 2008) ...................................................................... 42 Paisley v. RTS Transportation Systems, Inc., 285 AD2d 973 (4th Dept 2001) ...................................................................... 84 Perlin v. King, 36 AD3d 495 (1st Dept 2007) ........................................................................ 42, 55 Poole v. Veterans Auto Sales & Leasing Co., 668 So2d 189 (Fla 1996) ............................................................................... 53 viii Quain v. Buzzetta Construction Corp., 69 NY2d 376 (1987) ...................................................................................... 113 Rivera v. Lincoln Ctr. For Performing Arts, Inc., 16 AD3d 274 (1st Dept 2005) ........................................................................ 42, 55 Robillard v. Robbins, 78 NY2d 1105 (1991) ..................................................................................... 35 Russell v. City of Buffalo, 34 AD3d 1291 (4th Dept 2007) ...................................................................... 119 Schneider v. Memorial Hospital for Cancer, 100 AD2d 583 (2d Dept 1984) ....................................................................... 97 Sewkarran v. DeBellis, 11 AD3d 445 (2d Dept 2004) ......................................................................... 64 Shepherd v. New York City Trans. Auth., 129 AD2d 574 (2d Dept 1987) ....................................................................... 75 Sherry v. North Colonie Cent. School Dist, 39 AD3d 986 (3d Dept 2007) ......................................................................... 42, 50, 51, 55, 59 Shine v. Duncan Petroleum Transport, Inc., 60 NY2d 22 (1983) ......................................................................................... 89 Slivinsky v. Bloomerside Coop., 202 AD2d 491 (2d Dept 1994) ....................................................................... 87 Smith v. Sarkisian, 63 AD2d 780 (3d Dept1978) aff’d by 47 NY2d 878 (1979) .......................... 64 Stajano v. United Technologies Corporation, 5 AD3d 260 (1st Dept 2004) .......................................................................... 75 Steinhauser v. Hertz Corporation, 421 F2d 1169 (2d Cir 1970)........................................................................... 97 Stewart v. Olean Medical Group, 17 AD3d 1094 (4th Dept 2005) ...................................................................... 96 Sweeney v. Purcell Construction Corp., 20 AD3d 872 (4th Dept 2005) ........................................................................ 76 ix Syrkett v. Burden, 176 AD2d 938 (2d Dept 1991) ....................................................................... 104, 105, 108 Tag Mechanical Systems, Inc. v. VIP Structures, Inc., 63 AD3d 1504 (4th Dept 2009) ...................................................................... 84 Tate v. Colabello, 58 NY2d 84 (1983) ......................................................................................... 53 Whelan v. Whelan v. Kawasaki Motors Corp., 92 NY2d 288 (1998) ...................................................................................... 77 Zeigler v. Neely, 220 AD2d 345 (1st Dept 1995) ...................................................................... 42, 55, 59 STATUTES Page 40 Pa Cons Stat §221.40(a) (West 2012) ........................................................ 67, 69, 83 40 Pa Cons Stat §221.40(d) (West 2012)........................................................ 71 40 Pa Cons Stat §§ 221.1-221.63 (West 2012) ................................................. 72 CPLR 4404(a) ...................................................................................................50, 100 CPLR 5501(a) ................................................................................................... 61 CPLR 3211(e) ................................................................................................... 63 CPLR 3025........................................................................................................ 74 CPLR 5501(c) ................................................................................................... 42, 43 Insurance Law §3420 ........................................................................................ 70 Insurance Law §7433 ........................................................................................ 72 General Obligations Law §15-108 ..................................................................... 31, 63, 81, 121 OTHER AUTHORITIES Page ARTHUR KARGER, POWERS OF THE NEW YORK COURT OF APPEALS §52(3d ed Rev 2005) .........................................................................................62 1 QUESTIONS PRESENTED 1. Did the Appellate Division properly determine that the issue regarding the propriety of the additur amount was not expressly or implicitly preserved for review where only the setting aside of the damages verdict was actually challenged; and further, was such issue in any event waived by the Defendants’ failure to brief the issue on appeal to the Appellate Division? Answer: The Appellate Division properly found that the additur issue was not preserved. 2. Did the Dissent below err in creating a new and unworkable rule by finding that the propriety additur amount was reviewable as part of a final judgment where the additur had been rejected by the Defendants and a second trial on damages had been conducted? Answer: The Dissent below erred in finding that the propriety of a rejected additur amount was reviewable on appeal following the conclusion of a second trial. 3. Did the Appellate Division or the trial court abuse their discretion as a matter of law in denying Defendants permission to amend their answers to assert an affirmative defenses of release and General Obligations Law §15-108 when permission was sought long after the 2 trial in the matter was completed, the purported releases were rendered null and void by the liquidators’ avoidance of coverage and the Plaintiffs were prejudiced by the delay? Answer: The Appellate Division and the trial court properly exercised their discretion in denying leave to amend. 4. Did the Appellate Division or the trial court abuse their discretion as a matter of law by precluding Defendants from offering expert testimony or other proof concerning causation at the damages-only retrial where Defendants disclosed but did not offer such proof at the first trial? Answer: The Appellate Division and the trial court properly exercised their discretion in limiting the issues at the second trial. 5. Did the trial court, as affirmed by the Appellate Division, properly refuse to set aside the jury’s verdict finding Dent Neurological Institute negligent and finding Kaleida vicariously liable for Dent? Answer: The Appellate Division correctly determined that the verdict against Dent should not have been set aside. 3 PROCEDURAL HISTORY This appeal involves a complex medical malpractice action in which the Plaintiff, Daniel Oakes, a 42 year old contractor, husband and father of two, suffered from an undiagnosed sentinel bleed from a cerebral aneurysm that went untreated for a period of three weeks before rupturing in a massive bleed that left Mr. Oakes with catastrophic neurological injuries and permanently in need of around the clock care. As a result of the Defendants’ negligence, Mr. Oakes was left permanently disabled, wheelchair bound, wholly dependent in all activities of daily living and with severe cognitive deficits, including findings of dementia and mental retardation. This instant action was brought by Mr. Oakes and his wife, Lisa, for her derivative losses of services and society. The Plaintiffs brought the instant action against: Rajnikant Patel, M.D., his primary care physician; Stephen Sobie, M.D., an ear, nose and throat doctor seen by Mr. Oakes because of Dr. Patel’s initial diagnosis of sinusitis, who ordered CT scans of Mr. Oakes’ head and sinuses; Buffalo Otolaryngology Group, P.C., the medical practice to which Dr. Sobie belonged; Satish Mongia, M.D., a neurologist who treated Mr. Oakes prior to the massive rupture of his aneurysm; Kaleida Health as Successor in Interest to Millard Fillmore Hospitals d/b/a Millard Fillmore Suburban 4 Hospital (hereinafter Kaleida) who performed the CT scans of the head and sinuses but never reported the results of the head scan; and Ashok Nigam, M.D., a radiologist working in the radiology department at Millard Fillmore Suburban Hospital who read the sinus CT (R. 32-42). Unknown to the Plaintiffs, Dent Neurological Institute (hereinafter Dent) was also involved in Mr. Oakes’ care as Dent had an arrangement with Kaleida in which they read all the head CT scans at Millard Fillmore Suburban Hospital. Dent and Kaleida together sent up the procedures and protocols by which Dent would read the head CT studies. Unfortunately, the head CT scan, which showed the presence of a subarachnoid hemorrhage, was never read or reported. Dent’s involvement was not discovered until after the statute of limitations had expired for the Oakes. Prior to trial, Kaleida brought a third party action against Dent and physicians Vernice Bates, M.D. and Laszlo Mechtler, M.D., who were on call to read the films for Dent (R. 120-32). Thereafter, Plaintiffs also brought an action against Dent on a relation back theory. Kaleida, however, voluntarily discontinued its action against Dent with prejudice and the Plaintiffs’ action against Dent was dismissed prior to trial as untimely (R. 141-53, 336-9). Prior to the first trial, the Plaintiffs withdrew their appeal of the decision regarding Dent. 5 After two adjournments of the trial at Defendants’ request, including one where a jury had been seated in 2007, a trial was held from January 22 to April 7, 2008 before Timothy J. Drury, J.S.C. The first trial was lengthy as it involved essentially six trials in one, in which the liability of each of the Defendants as well as Dent was proved along with damages proof and voluminous medical records that were placed into evidence as part of the record. The jury returned a verdict in favor of the Plaintiffs, apportioning liability as follows: Patel 5%, Mongia 1%, and Kaleida 94% (75% for their own negligence and 19% vicarious liability for the negligence of Dent). Damages were awarded of $1 million for past pain and suffering, $1 million for future pain and suffering, $60,000 for past loss of services and society, $150,000 for future loss of services and society, $1.8 million for future supportive living services, $560,000 for past and future loss of earnings, and $553,500 for future medical and other expenses (R. 22037-48). Defendants Sobie, Buffalo Otolaryngology and Nigam were found not liable. Following post-trial motions by all parties, the trial court set aside limited portions of the damages verdict and ordered a new trial unless Defendants stipulated to an increased award of $5 million for past pain and suffering, $5 million for future pain and suffering, $1.5 million for past loss of services and society, $2 million for future loss of services and society and 6 $3.9 million for future supportive living services. Liability, causation and the other damages awards were undisturbed. The Defendants refused to stipulate to the increased awards (R. 11709-17). The Defendants did not ask the trial court to reconsider the amount of the additur nor indicate any willingness to stipulate to any amount greater than the first verdict, although reconsideration of the trial court’s denial of recusal was sought (R. 12032- 34). The Defendants did not enter into any settlement negotiations despite attempts by the trial court to facilitate same. Other than refusing to stipulate and appealing the order setting aside the first verdict, the Defendants never sought a lower additur amount or argued that they would have stipulated to a lower amount if it had been set by the trial court. Following the submission of post-trial motions, Kaleida then moved to amend its answer to assert an affirmative defense of release, based on language found in a proof of claim filed with Kaleida’s former insurer in liquidation, PHICO. The trial court denied Kaleida’s motion by order filed October 31, 2008 (R. 12040-57). Following a second trial on damages only held in the spring of 2009, the jury returned a verdict awarding Plaintiffs approximately $16.7 million, an amount nearly identical to the trial court’s additur. When added to the portion of damages which was allowed to stand from the first trial, the 7 verdict totaled $17.8 million (R. 28734-37). Following determinations over collateral sources and 50-A calculations, a final judgment was entered on December 23, 2009 (R. 18-31). Just prior to the entry of the final judgment, Kaleida sought to enjoin the Plaintiffs from entering or enforcing the final judgment by bringing an action in the Commonwealth Court of Pennsylvania. The trial court issued an injunction preventing Kaleida from seeking to collaterally attack the judgment in the courts of Pennsylvania which the Appellate Division allowed to remain in place by Order dated March 9, 2010. In connection with the Order, the Oakes were required to make an undertaking utilizing family property as collateral. Kaleida then appealed from the final judgment, obtaining a bond covering the full amount to stay enforcement of the order pending the outcome of its appeal. By decision of August 19, 2011, the Appellate Division, Fourth Department affirmed the final judgment in favor of the Plaintiffs of December 23, 2009 (R6a-13a). By 5-0, the Appellate Division unanimously affirmed the apportionment of liability, including the finding of vicarious liability for Dent, the setting aside of the damages verdict from the first trial as inadequate and the denial of leave to amend the Defendants’ answers to assert the affirmative defenses of release and General Obligations Law §15- 8 108. The Appellate Division also unanimously concluded, 4-0 (J. Peradotto, taking no position), that the Defendants’ arguments concerning causation at the second trial were without merit. By a 4-1 majority (J. Peradotto, dissenting), the Appellate Division found that the issue concerning the propriety of the additur amount was not preserved for review to either the trial court or to the Appellate Division. The sole dissent raised the issue sua sponte, which deprived the Defendants and the Plaintiffs of the opportunity to address the issue in their briefs. Prior to the dissent, the Defendants had only argued that the first verdict was proper and should not have been set aside at all. By a 3-1 majority (J. Smith, dissenting, J. Peradotto, taking no position), the Appellate Division affirmed that the damages from the second trial did not deviate materially from reasonable compensation. The Appellate Division, Fourth Department, by Order of September 30, 2011, granted leave to appeal to this Court. Defendant Kaleida had previously increased the amount of its appeal bond to cover the added time for the appeal to be heard. During the pendency of the appeal to this Court on February 27, 2012, the Plaintiff, Daniel Oakes passed away, and his Estate was substituted as Plaintiff in his place. 9 COUNTERSTATEMENT OF FACTS On August 7, 1998, the Plaintiff Daniel Oakes, suffered severe and permanent disabilities rendering him wheelchair bound, unable to walk or transfer, bowel and bladder dependent and totally dependent in all activities of daily living due to the failure of the Defendants to diagnose and treat a cerebral aneurysm that eventually ruptured in a massive subarachnoid hemorrhage. The Defendants failed to diagnose the aneurysm for a period of three weeks despite Mr. Oakes’ repeated presentation and history of the warning signs of a sentinel bleed, a small leak from a blood vessel in the brain that precedes a full rupture of an aneurysm, that includes sudden onset of a severe headache with vomiting. Further, a head CT scan was performed on July 23, 1998 that showed bleeding in the brain consistent with the symptoms of a sentinel bleed, but the scan was never read and a report was never rendered. The Defendants failed to diagnose and treat Mr. Oakes’ aneurysm prior to its massive rupture despite a positive CT exam that was never reported and the presence of the signs and symptoms of a subarachnoid hemorrhage from July 18, 1998 forward. It was undisputed at trial that the aneurysm could have been successfully treated at any time prior to August 7, 1998 which would have prevented Mr. Oakes from suffering any of his eventual disabilities. 10 I. MR. OAKES’ ATTEMPTS TO RECEIVE DIAGNOSIS AND TREATMENT On Saturday July 18, 1998 at 10:00 p.m., while driving home with his wife, Lisa, to Olean, New York from a balloon rally in Wellsville, New York, Daniel Oakes suddenly experienced the worst headache of his life, like none he had ever had before. He pulled the car over onto the shoulder of the onramp to I-86 and vomited (R. 4135, 4151-53, 4168, 4236). Mr. Oakes’ headache and vomiting continued over the rest of the weekend (R. 4158). In addition, Mr. Oakes was photophobic and spent his time lying down in a dark room (R. 4163). The sudden onset of a severe headache accompanied by vomiting and photophobia are known symptoms associated with a sentinel bleed from an aneurysm. Physicians are trained to recognize the history and symptoms of an intracranial bleed, and subarachnoid hemorrhage should have been part of a differential diagnosis (R. 5158-60, 5217). The prodromal symptoms and history of a sudden onset of headache with vomiting are a “gift” which warns a physician of the presence of a little leak from an aneurysm prior to its full rupture while it can still be treated successfully without residual neurological deficits (R. 5406-08). On Monday July 20, 1998, Mrs. Oakes called Dr. Patel’s office to schedule an appointment but none were available. However, Mr. Oakes 11 used his wife’s previously scheduled appointment for July 21, 1998 to receive treatment from Dr. Patel (R. 4162-63). Dr. Patel, who is not board certified, had been Mr. Oakes’ primary care physician since 1994 (R. 1284- 85). Dr. Patel diagnosed Mr. Oakes as having sinusitis, told him he was overweight and gave him a prescription for the sinusitis (R. 4169-72). A return appointment was made for August 3, 1998 (R. 4174). Mr. Oakes’ headache and other symptoms continued and also included neck pain (R. 4192). Two days later, on Thursday July 23, 1998, Mrs. Oakes spoke to Dr. Patel’s office by phone to get an earlier appointment, and the earliest available was July 30. Mrs. Oakes was told to give the medication he had prescribed more time to work but was not instructed to take her husband to the emergency room (R. 4177-82). Mrs. Oakes then made an appointment with Dr. Stephen Sobie of Buffalo Otolaryngology Group, P.C. for the same day, July 23, 1998 because the Plaintiffs still believed that Mr. Oakes had sinusitis. The Oakes paid cash for the emergency visit as their health insurance coverage would not begin until August 1 (R. 4184-87). Contrary to Dr. Patel’s diagnosis, Dr. Sobie determined that Mr. Oakes did not have any apparent sinusitis and sent him for immediate CT scans of his head and sinuses (R. 4193-94). The prescription noted that Mr. Oakes suffered from “acute onset headache with 12 nausea and vomiting” (R. 18039). Dr. Sobie did not direct the Oakes to any particular physician or facility to have the scan done, but only wanted it done immediately or on a stat basis (R. 1817-24, 4194-95, 18039). The Oakes were to await the results of the CT exam, which would be given to them by Dr. Zimmer who was on call covering for Dr. Sobie because the exam was being done after regular hours (R. 4197). Mr. Oakes had the CT exam done at nearby Millard Fillmore Suburban Hospital upon the recommendation of his mother, who was familiar with the area (R. 4198-99). The Oakes arrived at the hospital a little after 5:00 p.m. and believed that the hospital would be performing and reading the scans (R. 4200-03). At the hospital, Mr. Oakes read and signed a form which stated that the hospital would be providing medical services (R. 4204-05, 18067). The Oakes waited for the results in the radiology department waiting room and Mr. Oakes was apparently told that the CT scans were normal, although Mr. Oakes does not remember being told anything at the hospital. The Oakes then returned to Olean (R. 4212-14, 6558-59). The Oakes also paid for the CT scans out-of-pocket (R. 4214). Dr. Sobie called Mrs. Oakes the next day, on Friday July 24, at their home and said that the scans were normal and recommended seeing an eye doctor for light sensitivity and following up with Dr. Patel. Dr. Sobie did 13 not explain that there were two studies which were read by different groups nor was he aware of who read the scans (R. 1871, 4219-23). Mr. Oakes saw an eye doctor on July 24 who found no problems (R. 6564). Mr. Oakes had blood work done on July 27 as requested by Dr. Patel, and he continued to have a severe headache and his symptoms were unchanged up through his appointment with Dr. Patel on Thursday July 30 (R. 4229-30). At the July 30 appointment, the Oakes informed Dr. Patel that they had seen Dr. Sobie and were told that the CT was normal and that Mr. Oakes’ symptoms of headache, aching neck, hurting eyes and vomiting were persisting. Mr. Oakes vomited while at Dr. Patel’s office. Dr. Patel then diagnosed Mr. Oakes as having flu, recommended a dietician for diabetes and weight control and wanted the Oakes to maintain a blood pressure log (R. 4244-50). A follow-up appointment for August 13 was scheduled (R. 4253). Dr. Patel did not inform the Oakes that he had a serious or emergent condition (R. 4255-56). The next day, on Friday July 31, the Oakes made an appointment with Dr. Satish Mongia, a neurologist from Jamestown for Monday August 3. Mrs. Oakes then called Dr. Patel seeking a referral for Dr. Mongia but only spoke with the receptionist (R. 4257-61). The Oakes also saw Dr. Freer, a 14 chiropractor that same day, due to Mr. Oakes’ neck pain. Dr. Freer did not provide any treatment for Mr. Oakes (R. 4363-66). Mr. Oakes saw Dr. Freer again on August 3 who again provided no treatment but recommended seeing a neurologist (R. 4270). The same day, the Oakes saw Dr. Mongia in Jamestown. Mr. Oakes provided the same history to Dr. Mongia and was examined by him. Also, only the sinus CT report was faxed to Dr. Mongia from Dr. Sobie. Dr. Mongia told the Oakes he was considering migraines (R. 4271-81). Dr. Mongia ordered an MRI for August 14, an EEG and additional blood work (R. 4287, 20089). A follow up appointment was made for August 26 (R. 4291). The next day, August 4, Mrs. Oakes spoke with Dr. Patel again by telephone about the appointment with Dr. Mongia and Mr. Oakes’ persistent symptoms. Dr. Patel gave no indication that there was an emergency situation or that further action was required other than monitoring blood pressure and diet (R. 4303-11). From August 4 through 7, Mr. Oakes continued to rest and take the medications prescribed by the physicians but continued with the same symptoms (R. 4313-15). On Friday August 7, 1998 at 7:00 a.m., Mr. Oakes suffered a massive hemorrhage due to the rebleeding from his ruptured aneurysm (R. 4315, 4331). The rebleeding event on August 7, 1998 was consistent with the 15 pattern of a small initial sentinel bleed on July 18, 1998 eventually rupturing (R. 5218-20). Plaintiffs’ neurological expert, Alan Jacobs, M.D., testified that Mr. Oakes was at a Hunt-Hess Level I from July 18 up until the rebleed on August 7, whereupon he became a Hunt-Hess Level IV (R. 5203-05). Dr. Jacobs further testified that Mr. Oakes could have been successfully treated at any time while he was still at Hunt-Hess level I and that treatment prior to August 7 would have prevented the rebleeding event that led to Mr. Oakes’ disabilities and injuries (R. 5213-14, 6837-40). Dr. Jacobs’ testimony was that all of Mr. Oakes’ neurological injuries would have been avoided had timely treatment been provided. At trial, the Defendants only contested negligence and presented no evidence that Mr. Oakes would still have suffered some neurological injury in the absence of their malpractice. II. NEGLIGENCE OF KALEIDA AND DENT Unbeknownst to the Oakes, the hospital had an agreement with the neurologists of Dent Neurological Institute (Dent), in which Dent would read all of the head CT scans at the hospital while all other CT scans were read by radiologists at the hospital (R. 2452, 3432-34). The policies and procedures required Dent to read and interpret all head CT films (R. 21677). Dent was responsible for dictating the final written report for the head scan 16 (R. 9263-64, 9328-29). Millard Fillmore Gates and Suburban were the only hospitals in Western New York to have such an arrangement (R. 3432-34). Defendant Kaleida had formed as a result of the merger of Millard Fillmore Suburban Hospital (Suburban) with other local hospitals shortly prior to July 1998. The Oakes went to Suburban seeking radiology services from the hospital (R. 4201-02). They were not directed to Suburban by Dr. Sobie or any other physician (R. 1817-24, 4194-95). The Oakes were not informed that an outside neurology group would be reading the head scan nor were they aware that the scans would be split as two reads (R. 4215-17). The Oakes were not informed that Dent read the head studies nor were there signs informing them (R. 2495, 2882-2912). The Oakes believed that they were receiving services from the hospital consistent with the hospital paperwork that Mr. Oakes signed (R. 4200-05, 18067). The Oakes demonstrated that Kaleida and Dent had two different and inconsistent sets of procedures in place for how CT scans were read and reported, depending on whether they were head scans or non-head scans. The procedures were further broken down for stat reads and non-stat reads. The procedures were developed by both Dent and Suburban together (R. 2440-41, 2806-07). 17 All CT patients would have certain paperwork associated with them, including a prescription, a registration form and a requisition slip (R. 2484, 2493). In cases where both a head and a non-head study were being performed, the paperwork would be duplicated, with one set of the paperwork accompanying each set of films (R. 2487, 2505). For a stat non-head read, a CT technician would provide the films and paperwork along with a stat report sheet to the radiologist working in the department and wait while the read was made. The radiologist would then fill out the stat report sheet (R. 2508-09). The findings would then be called or faxed to the ordering doctor (R. 2515). The radiologist would then dictate the formal written report. For non-stat reads, the film and paperwork would be presented to the radiologist who would dictate a formal written report in its turn (R. 2517-18). For stat head reads, the images would be sent to the Dent neurologist over a computer to Millard Fillmore Gates Hospital and Dent would not receive the accompanying paperwork to the film (R. 2519, 2524). The technician would call Dent to inform them that images were coming and verbally relay information to them (R. 2525-27). The procedure was set up by Dent (R. 2528). No log was made of calls made to Dent concerning the stat read and the CT techs would not confirm that an image was received (R. 18 2531-33). Dent was not required to fill out a written stat report (R. 2537, 8738-39). The CT tech would then leave the films and the paperwork for the Dent neurologist to dictate a formal report at a designated area where it would be read at a later time when the Dent neurologist was at Suburban (R. 2535). Plaintiffs’ radiological expert, James Abrahams, M.D., testified that the policies and procedures created by Dent, in which all communications were verbal or by telephone, were a departure from the standard of care because documentation was required and relied upon for patient care (R. 4690-92). In this case, documentation of the stat read of the sinus films exists but there is none for the head films. While Gregg Zimmer, M.D., Dr. Sobie’s partner at Buffalo Otolaryngology Group, P.C., stated that he received a call reporting stat findings of the head from Vernice Bates, M.D. of Dent, there was no documentation of the conversation or the findings in the files of Dr. Zimmer, Dr. Sobie or Dr. Bates. In addition, Dr. Bates had no recollection of the event. Dr. Bates even questioned whether he read the films or was even on call to perform the read (R. 3792, 8745-48, 3773-75). The failure of Dr. Bates to document his findings or his conversation with Dr. Zimmer had it occurred was a departure from the standard of care (R. 4692-97). 19 Further, no written formal report of the head CT was ever made. Had a report been made, a copy would have existed in the hospital file, a copy would have been sent to Dent, and a copy would have been sent to Dr. Sobie as the ordering physician, but no such copies existed (R. 2573-74, 5885). In addition, Dr. Freer requested a copy of the reports from Suburban on August 3, but was only sent a copy of the sinus CT report (R. 8547-48, 8569-70). Also missing was the accompanying paperwork for the head CT scan, including the duplicate copies of the prescription, admission form and requisition slip which should have been produced (R. 2631-34). No bill for reading the head CT scan was ever sent by Dent, which would have been triggered by a report (R. 4233, 5898). Consequently, there is no documentation that the head CT film of July 23, 1998 was ever read, and this failure was a result of actions of both Kaleida and Dent. Without an interpretation and report, the study was never completed (R. 2587). Dr. Abrahams testified that the failure to document the results of a radiological study is a departure from the standard of care and that it was the responsibility of both Kaleida and Dent to produce the report (R. 4685, 4690-92, 4697, 4795-98). Dr. Abrahams and Dr. Jacobs testified that had the report been acted upon, Mr. Oakes would have received treatment that 20 would have prevented the re-bleed on August 7 and the injuries that resulted from it (R. 4718, 4746-50, 6837-40). III. MR. OAKES’ INJURIES AND DISABILITIES FOLLOWING HIS STROKE Mr. Oakes’ initial sentinel bleed from his aneurysm on July 18, 1998 was never diagnosed or treated, and as a result, the aneurysm massively ruptured on August 7, 1998 leading to a traumatic brain injury that left Mr. Oakes in a permanently disabled state, dependent in his activities of daily living, and with irreparable cognitive deficits. No evidence was presented at the first trial that any of Mr. Oakes’ injuries were the result of the initial sentinel bleed. As a result of his stroke, Mr. Oakes was hospitalized at Millard Fillmore Gates, ECMC and Our Lady of Victory hospitals from August 1998 until March of 1999 (R. 12511, 12515, 12522-23). At the hospitals, Mr. Oakes underwent numerous procedures including ventriculostomy, placement of a Greenfield filter, craniotomy, tracheostomy, bronchoscopy, hematoma evacuation, PEG tube placement, and shunt placement secondary to communicating hydrocephalus (R. 22098-99). The stroke left Mr. Oakes neurologically devastated with multiple parts of his brain affected including frontal lobes, singular gyrus, limbic system, corpus callosum, medial lobes, hippocampus, amygdala, thalamus and pons (5298-5301, 12811, 12814-15). 21 At his initial rehabilitation at ECMC, Mr. Oakes suffered numerous disabilities that included: quadriplegia, tremor, dysphagia, neurogenic bowel and bladder, urinary tract infections, aphasia/apraxia, respiratory distress, deep vein thrombosis, maximal assistance in activities of daily living, ulcers, and depression (R. 22100-01). While at ECMC, he was severely disabled and required around the clock care. Although improvements were noted that permitted him to breathe independently, eventually eat with swallowing difficulties and allowed some movement to return to his right arm and leg in a limited fashion, he remained completely dependent on others (R. 13206, 13221-22, 13234-35). Mr. Oakes frequently cried during his hospitalization because of his injuries (R. 12523). In order for Mr. Oakes to return home, several modifications and an addition were made to the house that allowed for specialized equipment, a ramp, a wheelchair roll-in shower and ceiling lifts to be installed which allowed a nursing home level of care to be provided to him by Mrs. Oakes (R. 6677, 12526). Following his hospital course of rehabilitation in the spring of 1999, Mr. Oakes was left with multiple physical disabilities that were permanent and for which he required around the clock care (R. 4355). Mr. Oakes’ permanent injuries and disabilities included: bowel and bladder dependency, loss of sexual function, tremor, hemiplegia affecting the left upper and lower 22 extremity, pressure sores, painful excoriations, spasticity, flexion contracture of left knee, inability to ambulate or transfer and osteoporisis (R. 6658-60, 6679, 12554, 12848-50, 14213-14). Mr. Oakes could not roll himself in bed (R. 12660, 14225-26) and had painful skin breakdowns (R. 14139-42, 14162-5). His injuries left him prone to cellulitis and required hospitalization (R. 6679, 14207-12). Mr. Oakes was left unemployable due to his lack of mobility, dependency and cognitive deficits (R. 5303-04, 6675). Mr. Oakes was also left with devastating cognitive losses. Mr. Oakes had apraxia affecting left body movements, encephalomalacia which was permanent loss of brain tissue, losses to executive functions, behavior, personality, emotions, communication ability, diminished cognitive skills, understanding, judgment and motor function. In addition, Mr. Oakes suffered from loss of bowel and bladder control, and diminished inhibitions and socialization, diminished ability to process new memories and was emotionally labile (R. 5298-5302, 6661-63, 6673, 6679, 12811, 14205). Mr. Oakes further suffered from a loss of intelligence from a normal intelligence to that of mild retardation, or an IQ loss of forty points to a score of 63, loss of memory, perseveration or repeatedly doing the same activity to the point of futility, loss of executive functioning and personality change (R. 13769, 23 13774-77, 13815). Mr. Oakes demonstrated poor judgment and decision making (R. 4424-25). Mr. Oakes also had depression and dementia, although he had full awareness of who he was and what he lost (R. 12523, 12870-71, 13778, 13801-09, 13816-17). Mrs. Oakes testified to significant changes in Mr. Oakes’ thinking ability, personality and behavior. Mr. Oakes acted in inappropriate ways and repeated inappropriate stories. Mrs. Oakes testified to an incident where Mr. Oakes repeated a dirty joke multiple times, including to their minister, which was completely against his character prior to his injury (R. 4423-24). Mr. Oakes also acted impulsively and without exercising judgment. Mr. Oakes has driven his wheelchair into mud puddles and gotten stuck, even when such obstacles were pointed out to him (R. 4425). Another example was provided where Mr. Oakes repeatedly attempted to purchase unnecessary items from television infomercials and QVC (R. 12619-20, 13433-35, 13695). Mr. Oakes kept his wife up at night to attend his needs (R. 4435-36). As a result of his injuries, Mr. Oakes required continuous around the clock care and supervision from 1998 through his death in February 2012. Mr. Oakes’ extensive care needs in his activities of daily living included requiring full assistance with dressing, grooming, bathing, transfers out of 24 bed and out of his wheelchair, and bowel and bladder regimen that continued through out his life (R. 12544-95, 12685-87, 13101-02, 14217-22). Mr. Oakes suffered from involuntary bowel movements all the time that were not prevented by his enema regimen, including occasions which were in public and forced Mr. Oakes to leave due to the odor from the defecation (R. 4346, 13614-15). Mrs. Oakes changed his diaper four times a day because his daytime aides could not perform hands on care (R. 5844-45). Mr. Oakes did not sleep at night and had to be changed in position while in bed every two hours during the night to prevent pressure sores (R. 4356, 4435-36, 12617, 13185). Mr. Oakes required constant supervision for his own safety (R. 12666-67, 13777-78). Due to his extensive needs, Mr. Oakes received 28 person-hours a day of care (R. 6694-95). While suffering cognitive deficits, Mr. Oakes was aware of his condition, was depressed and was embarrassed when bowel/bladder accidents occurred. Mr. Oakes’ injured condition stood in stark contrast to his life prior to his traumatic brain injury. Before his injuries, Daniel Oakes had been an industrious small business owner, devoted husband and father of two and a community leader. Although a large man, Mr. Oakes had been strong, energetic and healthy prior to his injury. He had no history of headaches prior to July 18, 1998 (R. 4124, 4130-31, 6542). 25 Professionally, Mr. Oakes ran an excavation business since the age of seventeen which was incorporated as R&D Oakes Construction, Inc. in 1976. He owned and maintained all of his equipment that included trucks, plows, a bulldozer, a loader and a grader. He would machine his own parts (R. 4100-03). Mr. Oakes employed two to four employees (R. 4105). His primary work involved digging cellars, installing septic systems, grading land and plowing snow in winter. Mr. Oakes was called upon to make estimates and submit bids with much of his work and was skilled at math (R. 4109-10, 6515, 12469). Additionally, Mr. Oakes was active in his community and was elected to serve as the Highway Superintendent for the Town of Olean for four years from 1994-1997 (R. 4118-19, 6523). Daniel and Lisa Oakes were married in 1981 and had two children, Michele and Dana (R. 4082-85). Dana was thirteen at the time of Daniel’s injury and Michele was fifteen (R. 12501, 15094). The Oakes owned approximately thirty acres, which encompassed the home, the business, a gravel pit, horse pasture and other out buildings (R. 4099-4101, 4107). Mr. Oakes was very handy around the house, maintained the property and had even built a house for his father and remodeled his own house (R. 4107, 6509, 15091-92). Mr. Oakes was also very involved in his children’s lives as a father by participating in scouting, horse riding, music, boating, flying 26 model aircraft and giving them counsel. Mr. Oakes was multitalented and had a pilot’s license. (R. 4114, 4125-26, 4427-28, 6538, 12463-64, 12472- 73, 15087). Mr. Oakes would spend time with his family and took them on vacations together, but they never were able to take a vacation after Mr. Oakes’ traumatic injury (R. 12488, 12682, 15092). Mr. Oakes played an instrumental part in the Oakes’ family life and was intensely involved in the lives of his wife and children. Mr. Oakes help his son in scouting to achieve the rank of Eagle and involved him in the family business and running construction equipment with a goal of following in his footsteps (R. 4114-16, 6516-17, 12463-66, 13406, 23649). Dana received awards as an equipment operator as a teenager at the state fair and helped run the business while still in high school after his father’s injuries (R. 13403, 13413). Mr. Oakes intended on teaching his son how to fly an airplane prior to his injury (R. 6597). Mr. Oakes helped Michele with music and theater by buying her a piano and encouraging her (R. 4428, 12472). He also bought Michele a horse, helped her with riding lessons and even built a barn for her to raise the horse (R. 12473-4, 15089-91). Mr. Oakes taught both children a sense of community involvement by organizing school fundraisers (R. 15088-89). 27 Mr. Oakes was a devoted husband who treated his wife and family with respect (R. 12546). They would discuss everything in their lives together and Mr. Oakes provided leadership to the family by taking care of everyone (R. 4426). Mr. and Mrs. Oakes did not quarrel or fight (R. 12495). The Oakes had a close, affectionate and loving marital relationship but it was lost due to his physical and mental disabilities (R. 4434). Mr. Oakes would regularly show his affection to his wife by kissing her or telling her that he loved her (R. 12492-93). The Oakes frequently went out together, socialized and took a yearly vacation together as a couple (R. 12488, 15087). Mrs. Oakes’ life completely changed as a result of her husband’s injuries and she and her husband were no longer able to relate to each other as husband and wife, emotionally, intellectually or physically. Mrs. Oakes wanted to resume her role of wife rather than act as caregiver (R. 12680-81, 12683-84, 15118). IV. FACTUAL BACKGROUND CONCERNING KALEIDA’S POST-TRIAL MOTION TO AMEND ITS PLEADINGS Plaintiffs originally brought this action against Defendant Kaleida and four other physicians and a medical group by service of a summons and complaint in November 3, 2000. Defendant Kaleida had been insured through PHICO Insurance Company (PHICO) with a $25 million excess 28 policy above a $2 million self-insured retention, but PHICO subsequently entered liquidation (R. 11775-77). The case was originally set for trial in August 2006 and adjourned twice at the request of the Defendants. A jury was even seated in January 2007 but the trial was adjourned and ultimately commenced in January 2008. Kaleida did not seek to amend their answer to add the defense of release prior to the January 2008 despite having several opportunities before the trial to do so. In fact, Defendant Kaleida had amended its answer in 2005 without adding the defense despite the fact that the proofs of claim, upon which the claim of release was based, had been provided to PHICO in liquidation in 2003 (R. 162-67, 11743-44). On September 16, 2005, Defendant Kaleida brought a third party action against Dent (R. 120-32). Plaintiffs then sought to bring an action against Dent after the Statute of Limitations had passed on a relation back theory (R. 141-52). Dent moved successfully to have the Oakes’ case dismissed from which the Plaintiffs appealed but discontinued prior to the first trial (R. 338-45, 11928). Kaleida discontinued its action against Dent with prejudice without seeking the approval of PHICO in liquidation (R. 336-37, 11982). 29 Plaintiffs and Defendants discussed settlement at several pre-trial conferences in this proceeding, including prior to the 2007 adjourned trial date. During these talks and in correspondence sent to Defendant Kaleida, the Plaintiffs inquired as to the status of the PHICO liquidation and how to contact PHICO (R. 11934-39). Further, in response to Plaintiffs’ inquiries, including during the trial itself, Defendant Kaleida represented that it would be paying all of the damages given the liquidation of its insurer (R. 11921- 22). In the 2008 trial, Defendants Sobie, Buffalo Otolarygology Group and Nigam were found not liable. Plaintiffs then stipulated to not pursue an appeal against these three defendants (R. 11924-27). After post-trial motions from the 2008 trial had been made and argued, Kaleida for the first time raised the issue of asserting the PHICO Proofs of Claim as releases (R. 11721-23). Again, this was never raised at any time prior to the previously adjourned trials, prior to the 2008 trial or even during the 2008 trial. Kaleida waited until after it filed its post-trial motions to amend its answer. PHICO in liquidation and the New York Liquidation Bureau, which was responsible for the first $1 million in excess coverage, both reserved their rights to indemnify Kaleida for the portion of damages it owed arising from its vicarious liability for Dent’s negligence. In addition, the 30 Liquidation Bureau expressly denied the claim following the 2008 trial. The basis for the reservation of rights and denial was the failure of Kaleida to seek PHICO in liquidation’s or the Liquidation Bureau’s approval prior to discontinuing its action against Dent (R. 11982). Kaleida never informed the trial court or the Plaintiffs about the reservation of rights or the denial when it moved to amend its answer despite the fact that it was aware that the claim was compromised (R. 11921). It was the inquiry of Plaintiffs’ counsel to the Liquidation Bureau upon receiving the post-trial motion that led to the discovery that there was a reservation of rights and denial and that the Liquidation Bureau was considering a declaratory judgment action to disclaim coverage (R. 11868). Kaleida never informed the trial court that its own actions in discontinuing against Dent without permission from PHICO in liquidation or the Liquidation Bureau put at jeopardy the very coverage to which Kaleida claims the Plaintiffs are limited. To this date, full coverage has not been accepted by the liquidator (R. 11981-91). The Appellate Division properly determined that the Proofs of Claim were null and void as releases due to the avoidance of coverage under the conditions contained in the Proofs of Claim. In addition, due to the prejudice to the Plaintiffs arising from the failure to amend the pleadings at an earlier date and the ongoing questions of fact as to the validity of the 31 Proofs of Claim which precluded a summary disposition of the issue post trial, the trial court properly denied Defendants’ motions (R. 12036-57). Neither the Appellate Division nor the trial court abused their discretion in denying leave to amend. Kaleida initially appealed from the Order denying leave but then withdrew it in lieu of making a single appeal from the final judgment (R. 17905-06). However, prior to the entry of the final judgment, Kaleida brought an application in the Commonwealth Court of Pennsylvania seeking once again to enforce the purported releases in the Proofs of Claim, to prevent the Plaintiffs from entering judgment and even to enjoin the Plaintiffs from litigating in the New York courts. After entry of the judgment, the trial court issued an injunction which was left intact by the Appellate Division by Order dated March 9, 2010 preventing Defendant Kaleida from collaterally attacking the judgment in the Pennsylvania courts. ARGUMENT The decision of the Appellate Division – Fourth Department was properly made and should be affirmed by this Court. The Appellate Division properly found that the Defendants failed to preserve an argument that the amount of the additur set by the trial court was excessive and that 32 the Defendants waived any such arguments, if preserved, by failing to raise them before the Appellate Division. (Oakes v Patel, 87 AD3d 816, 820 [4th Dept 2011]). The Appellate Division likewise properly affirmed the trial court’s discretionary decision not to grant leave to the Defendants to amend their answers to assert defenses of release and General Obligations Law 15- 108 (id. at 818). The Defendants sought to amend their answers long after the liability trial was over to the prejudice of the Plaintiffs on grounds that were substantively invalid. The Appellate Division also properly affirmed the trial court’s ruling that causation had been determined at the first trial such that the second trial would be limited to certain issues of damages only (Id. at 819). Point I – The Additur Amount Issue was Not Preserved Before the Trial Court and was Waived on Appeal by the Defendants’ Failure to Address the Issue The Defendants failed to preserve the argument that the amount of the additur was set too high by the trial court and should have been reduced to a lower, proper amount for their acceptance or rejection. The most basic element of preservation was not met in this case because the trial court was never given an opportunity to address the alleged error over the amount of the additur. The Defendants never made any argument concerning the specific amount of the additur to the trial court or to the Appellate Division 33 and never expressed a willingness to accept a reasonable additur. Similarly, the Plaintiffs were not afforded an opportunity to respond to any arguments concerning the amount of the additur before the trial court. Instead, the Defendants rejected the additur and went ahead with the trial ordered by the trial court. Where neither the trial court nor the opposing party had the opportunity to address the error now alleged by the Defendants, the error has not been preserved for review. Review of the record shows that the Defendants never expressly raised an issue regarding the excessiveness of the additur or requested the opportunity to accept a lower, proper additur. The record further establishes that Defendants never expressly raised such arguments to the Appellate Division. Consequently, the Defendants’ only basis for asserting that review of the additur amount was preserved is that the argument was implicitly preserved in the rejection of the additur. No such implicit preservation concerning review of the additur amount was made. A. The Defendants Did Not Preserve Any Argument Regarding the Excessiveness of the Additur Amount to the Trial Court The majority of the Appellate Division correctly observed that “the defendants did not challenge the court’s additur before, during or after the second trial, and did not raise that issue on appeal” (Oakes, 87 AD3d at 819). No portion of the record or Defendants’ briefs contains argument that 34 the trial court’s additur was excessive and thereby deprived Defendants of an opportunity to accept or reject an appropriate additur. Instead, the Defendants have consistently argued that they would have rejected any additur because the original verdict should not have been set aside. The Defendants’ position has been that the award itself did not deviate materially from reasonable compensation and was in fact generous in the first place (Supp. R. 66-70, 127-133, 194-205). The Defendants have never asserted that they would be willing to accept an amount less than the additur set by Justice Drury. While Defendants state, for example, that they would not stipulate to the “vastly” increased award (Supp. R. 128), they never argued that the amount of the additur should have been reconsidered or that they were amenable to accepting a different amount. Likewise, the Defendants never argued that the trial court incorrectly applied the law in setting the additur. Instead, they argued that the first verdict was proper and should be reinstated. The position that no additur was proper because the original verdict was correct and should not have been set aside does not preserve the contention that the additur was excessive and should be reduced. Indeed, the positions are mutually exclusive and contradictory. One cannot reject any and all additurs while at the same time argue that one would accept an 35 additur had it been in a proper amount. It must be one or the other. A general objection to an additur does not preserve the specific objection now raised (see Robillard v. Robbins, 78 NY2d 1105 [1991]). Defendants could have argued, in the alternative, that a lower additur should have been set had they wanted to preserve that position. Defendants continue to maintain on this appeal that “additur in any amount” was not warranted (Kaleida’s Br. 57 [emphasis added]). If this is true, the amount of the additur is not relevant. The Defendants have continually maintained that the first verdict simply should not have been set aside. Given the arguments actually made by the Defendants, they would reject any additur, even if a lower amount had been set by the trial court as the dissent below claims should have been done. Because all additurs were unacceptable to the Defendants, they never preserved the argument that they would have accepted a reasonable additur had it been made by the trial court. They expressly stated that they had no intention of doing so. Consequently, such a position provided no notice to the trial court or the Plaintiffs of the contradictory position now urged on appeal on the basis of the dissent below. Defendants took no steps to preserve the argument that the additur should have been retained but reduced in amount. None of the steps claimed 36 by the Defendants to have preserved the argument actually did so. First, the opposition to the Plaintiffs’ motion setting aside the first verdict did not preserve the amount of the additur because no additur had been set yet and the Defendants contended that the first verdict amount was proper and should not have been set aside at all. The Defendants never argued in the alternative what a proper additur should be in the event that the court set aside the verdict. Second, Defendants did not preserve the objection by refusing to stipulate to the additur because an additur can be rejected for many reasons, including the asserted reason that the first verdict should not have been set aside at all. Refusing to stipulate provides no notice for the argument that the additur was not set at the lowest allowable amount, particularly where the trial court stated that it was setting the additur at the minimum level the proof permitted (R. 11706-07). Third, neither the appeal from the order setting aside damages nor its later withdrawal provided any indication that there was an objection to the specific amount of the additur rather than a general objection to the setting aside of the verdict, the point actually argued later on appeal. Fourth, similarly, the appeal from the final order would not have preserved the argument concerning the additur because an appeal from a final order never 37 preserves specific issues not previously argued or raised. Finally, the appellate brief failed to preserve the issue of the additur because the alleged excessiveness of the additur was never argued. A party cannot preserve an issue by raising it for the first time on appeal. The Defendants had the opportunity to ask the trial court to reconsider the additur it awarded for the reasons stated by Justice Peradotto below, but chose not to do so. After the trial court set the additur, Defendant Kaleida made a motion for reconsideration for Justice Drury to reconsider recusing himself in light of the amount of the additur, which Kaleida contended was evidence of bias (R. 12029-35). Nothing prevented the Defendants from seeking the court to reconsider the amount of the additur at that time as well. Defendants could then have argued that an additur should be set at the lowest reasonable amount permissible and that the court failed to do so, thus providing the court with the opportunity to correct itself. The Defendants could have indicated that they were willing to accept a lower, proper additur, but they chose not to do so. Instead, the Defendants chose once again to attack the integrity of the trial court rather than make the claims they now advance for the first time to this Court. 38 B. The Amount of the Additur Was Not Raised in Defendants’ Briefs In their briefs, the Defendants argued that the first verdict should not have been set aside because the amount of damages was reasonable or even generous in comparison to other verdicts. Both the trial court and the Appellate Division found that certain elements of damages were properly set aside. However, the argument that the first verdict should not have been set aside is not the same as arguing that the additur was excessive. Further, the argument that the second verdict was excessive has no bearing on the propriety of the additur amount because they are separate and distinct issues. Contrary to the assertions made in the Brief on behalf of Dr. Patel (Patel’s Br. 31), the Defendant sought a reduction in the amount of the second verdict but never ask the court to reduce the additur (Supp. R. 142-46). In their brief to this Court, Defendant Kaleida explicitly stated that “No amount of additur was warranted” (Kaleida’s Br. 60) which stands in opposition to the position raised by Justice Peradotto that some amount of additur was warranted. Before one even questions the amount of the additur, the propriety of having an additur at all must be addressed. The Defendants’ position from their papers below and to this Court is clear; they claim that no additur was warranted at all. No argument related to the amount of the additur was ever explicitly raised by the Defendants. 39 As the Appellate Division stated in the majority opinion, references to the amount of the additur in the factual portions of the brief do not constitute challenges to the amount of the additur (Oakes, 87 AD3d at 819-820). No express arguments were ever made that the additur should have been set at a lower amount because the trial court utilized an improper method in setting the additur. No indication was made that the Defendants were willing to stipulate to a lower additur and were deprived of the opportunity to do so. The majority below properly concluded that the issue was not before them. No argument in the nature of the dissent of Justice Peradotto was made until the dissent itself was written. Indeed, none of the law cited by Justice Peradotto was ever cited by the Defendants below. The 4-1 majority of the Appellate Division properly determined that the issue was not before them. While the dissent could address unpreserved issues in the interest of justice, this Court cannot address such unpreserved issues (see Merrill v. Albany Med. Ctr. Hosp., 71 NY2d 990 [1988]). See also, Misicki v. Caradonna, where this Court stated: While appellate judges surely do not sit as automatons, they are not freelance lawyers either. Our system depends on adversary presentation; our role in that system ‘is best accomplished when [we] determine[] legal issues of statewide significance that have first been considered by both the trial and intermediate appellate court. (12 NY3d 511, 519 [2009] [internal citations omitted]). 40 In responding to the dissent, the majority observed that the Defendants failed to preserve an argument about the additur amount to the trial court or to brief the argument to the Appellate Division. The majority did not make this statement in response to the Defendants because the Defendants never raised the issue. Isolated references to the amount of the additur in the briefs are not argument that the additur was too high or that the trial court applied an improper methodology. Instead, the Defendants made factual statements that the amounts were multiple times the jury award. The Defendants never argued that they were deprived of the ability to accept or refuse a lower additur or any of the other arguments set forth in the dissent below. Furthermore, the Defendants clearly waived any argument concerning the additur amount before the Appellate Division. As argued above, nothing in the Defendants briefs alleged an issue in how the additur was determined, that it was too high, or that they were deprived of a right to accept or reject a lower additur. The argument that the verdict should not have been set aside provided no notice of the contention that the additur should have been set at a different amount. The issue is not properly brought up for review to this Court as the issue was not argued or briefed at either the trial or at the Appellate Division as the adversarial system requires (see Misicki, 12 NY3d 41 511). The Defendants and the Plaintiffs are now in the position of making their first arguments ever regarding the amount of the additur in these submissions to the Court of Appeals. The Plaintiffs had no opportunity to provide argument regarding the appropriateness of the additur amount to the trial court or the Appellate Division. The record and the Defendants’ briefs did not provide any indication that the respondents needed to provide such a response or address preservation. Defendants use the fact that the Plaintiffs did not raise the preservation issue in the courts below to suggest that the issue had been preserved. However, there is simply no requirement for an opposing party to surmise all possible objections and arguments which could have been raised but were not. Instead, opposing parties respond to the arguments actually made. In this case, the Defendants never argued that an additur was proper but the amount was improperly set at too high a number. Indeed, none of the arguments raised by the Defendants to this Court were ever made before. Plaintiffs had no notice of the need to respond to an unmade argument regarding the propriety of the additur amount. Instead, Plaintiffs addressed the arguments actually put forth in the Defendants’ briefs. The first notice that the Plaintiffs received that the amount of the additur was in issue was 42 upon receiving the Appellate Division’s decision as the arguments had never been made by any party in the litigation up to that point. Herein the fact that none of the Defendants citing a single case relied upon by Justice Peradotto demonstrates the failure of the Defendants to raise the arguments previously.1 The majority below raised the issue of preservation in response to the sua sponte argument of Justice Peradotto for which neither the Defendants nor the Plaintiffs provided any input. Defendant Kaleida’s discussion of CPLR 5501(c) is inapplicable to this case. CPLR 5501(c) involves the applicable standard for the review of jury verdicts, which is not in dispute. The Appellate Division reviewed both verdicts and found that the first verdict was properly set aside and that the second verdict did not deviate materially from reasonable compensation. The Defendants have not contended that the Appellate Division applied the wrong standard. CPLR 5501(c) does not discuss the steps for preservation 1 Justice Peradotto cited to Sherry v. North Colonie Cent. School Dist. (39 AD3d 986 [3d Dept 2007]), Zeigler v. Neely (220 AD2d 345 [1st Dept 1995]), Libman v. McKnight (204 AD2d 856 [3d Dept 1994]), Perlin v. King (36 AD3d 495 [1st Dept 2007]), Rivera v. Lincoln Ctr. for Performing Arts, Inc. (16 AD3d 274 [1st Dept 2005]), Carlos v. W.H.P. 19 LLC (301 AD2d 423 [1st Dept 2003]); Camacho v. Rochester City Sch. Dist. (20 AD3d 916 [4th Dept 2005]), Kmiotek v. Chaba (60 AD3d 1295 [4th Dept 2009]), Orlikowski v. Cornerstone Community Fed. Credit Union (55 AD3d 1245 [4th Dept 2008]), Marshall v. Lomedico (292 AD2d 669 [3d Dept 2002]), Keyser v KB Toys, Inc. (82 AD3d 713 [2d Dept 2011]) and McDonald v. 450 W. Side Partners, LLC (70 AD3d 490 [1st Dept 2010]) in making the argument that the additur was subject to review as being excessive. None were cited below by any of the parties. Doviak v. Lowe's Home Ctrs., Inc. (63 AD3d 1348 [3d Dept 2009]) was cited on other issues by Plaintiffs upon which Defendants made replies unrelated to the issue raised in the dissent. (Supp. R. 4-7, 81-83, 154-59, 234-38, 312-15, 376-79, 448-49, 483-84, 505-07). 43 of an additur argument or demand that additurs themselves be reviewed where they have been rejected and a second trial conducted. Had the Defendants sought review of the amount of the additur, nothing in CPLR 5501(c) excuses the Defendants’ failure to raise the issue at any point in the prior proceedings. C. Defendants’ Challenge to the Amount of the Additur Was Not Implicitly Preserved by Their Refusal to Stipulate to the Additur The fundamental flaw with the Defendants’ preservation argument is that they never actually argued or raised the point made by Justice Peradotto. Thus, they must rely on the conceit that a challenge to the amount of an additur is a “lesser-included concept” (Mongia’s Br. 40) implicitly included in their challenge to the setting aside of the verdict. Hence, the Defendants elaborate all the challenges made to the setting aside of the verdict as somehow preserving a challenge to the excessiveness of the additur. However, the argument that there should be no additur at all excludes the argument that an additur would be acceptable to the Defendants but should be lower than the value set by the court. If the Defendants wished to preserve the inconsistent argument regarding the amount of the additur, they needed to alert the court and the opposing party to the alternative relief they were seeking. Contrary to the Defendants’ assertions, seeking alternative relief with respect to an additur would in no way undermine the argument 44 that there should be no additur at all or represent some form of bidding against oneself. The majority below properly found that challenges to setting aside the first verdict or to the amount of the second verdict did not implicitly challenge the amount of the additur. The majority cited Gerbino v. Tinseltown USA (13 AD3d 1068 [4th Dept 2004] [Pigott, J., Presiding Justice]), a case where a Defendant refused to stipulate to an additur which was followed by a second damages trial, just as in the present case. In Gerbino, the first trial resulted in an award of $100,000 for future pain and suffering which was set aside unless an additur to $150,000 was accepted (id. at 1072). The additur was rejected and followed by a second trial awarding $900,000, which was reduced to $350,000 by the Fourth Department (id. at 1072-73). The propriety of the amount of the additur following the first trial was not reviewed in the decision. Neither the challenge to the setting aside of the first verdict nor the challenge to the amount of the second verdict preserved the issue or brought the amount of the additur up for review. The steps taken by the Defendants, which they point to as preserving the additur issue for review, would also have been undertaken in Gerbino. In Gerbino, as in the present case, the defendants would have opposed the 45 setting aside of the first verdict, rejected the additur, appealed from the decision setting aside the verdict and granting the additur, and opposed the amount of the damages awarded at the second trial. None of the actions in Gerbino preserved or raised the issue of the additur amount and the court did not raise the issue of its own accord as Justice Peradotto did in the present case. Contrary to the assertions of the Defendants, the Appellate Division simply followed long established precedent in refusing to consider the amount of the additur in this case and did not create a new preservation requirement. The issue of additur was no more preserved and raised in this case than it was in Gerbino. The fact that the additur argument was not preserved could come as no surprise to the Defendants. In fact, the only surprise was that the argument appeared in the dissent at all, having never been raised before. The other departments of the appellate division also have not reviewed additurs following second trials for damages where an additur was refused. In O’Brien v. Covert, a verdict of $82,500 was set aside unless defendants stipulated to an additur of $142,500 (187 AD2d 419, 419-20 [2d Dept 1992]). The defendants refused and a second verdict was awarded for $200,000. (id. at 420). The Second Department did not review the amount 46 of the additur despite challenges to the setting aside of the first verdict and the amount of the second verdict. The First Department followed the same course in Infante v. City of New York (258 AD2d 333 [1st Dept 1999]). This Court had the opportunity to determine whether an additur was brought up for review simply by challenging the setting aside of a verdict or the amount of damages following a re-trial in Deitsch Textiles, Inc. v. New York Property Ins. Underwriting Assn. (62 NY2d 999 [1984], rev’g, 93 AD2d 853 [2d Dept 1983], remanded to, 111 AD2d 211 [2d Dept 1985]). In Deitsch Textiles, the trial court had set aside a verdict of about $68,000 unless defendant stipulated to an additur of $250,000 (see 62 NY2d at 1000- 01). The defendant refused and the second trial returned a verdict of $170,000 (see id. at 1001). The Appellate Division reversed on grounds unrelated to the assessment of damages which led to yet another trial, resulting in a defense verdict that was appealed directly to the Court of Appeals (93 AD2d at 854; see also 62 NY2d at 1001). This Court reversed the Appellate Division and reinstated the prior judgment of the trial court that set aside the first verdict, granted additur and awarded the damages from the second trial, remanding the case for further proceedings in the Appellate Division (62 NY2d at 1000). This Court never commented on the amount of the additur nor did it direct the Appellate Division to do so. On remand, the 47 Second Department affirmed the judgment without commenting on the propriety of the additur amount (see 111 AD2d 211). As in Gerbino (13 AD3d 1068) and the other cases discussed above, the challenges made by the Defendants in this case did not raise an issue with respect to the additur. Appellate review of the adequacy or excessiveness of an additur is not preserved where only the setting aside of the damages verdict and the excessiveness of damages at a second trial were challenged by appellants (Oakes, 87 AD3d at 819). No precedent exists for the proposition that challenging other aspects of the final judgment implicitly preserved arguments which were never actually made to the trial court or the Appellate Division nor were a necessary component of the elements actually challenged. As shown above, the precedent is uniformly to the contrary. The cases cited by the Defendants do not support a conclusion that the additur issue was preserved. None of the cases involve a situation where an additur was reviewed after the additur’s rejection and the completion of a second trial, a markedly different procedural context than in the present case. Each of the cases cited by the Defendants involves an appeal directly from the order setting aside a verdict and granting an additur or remittitur, prior to the stipulation being refused or a second trial being conducted. In addition, 48 Murphy v Lewry (235 AD2d 968 [3d Dept 1997]) and Carlson v Porter (53 AD3d 1129 [4th Dept 2008]) involved review of the adequacy of jury verdicts and not additurs or remitturs at all. As such, they have no bearing on the issue of whether the additur argument was preserved. Further, the parties in those cases, unlike the present case, actually raised an issue concerning the excessiveness or inadequacy of the verdicts. Defendants’ reliance on Adams v. Genie Indus., Inc. (14 NY3d 535 [2010]) is also misplaced. Adams dealt with whether a party who stipulated to an additur or remittitur was an aggrieved party who could challenge other aspects of an order or judgment unrelated to damages (id. at 40). Adams did not deal with preservation or the right of a party to challenge the amount of an additur after it was rejected and a new trial conducted. The Defendants point to no surprise or trap arising from the Appellate Division refusing to rule on an issue that was not argued before them. Likewise, once the Defendants rejected the additur, only the order setting aside the verdict and ordering a second trial remained as an issue for the Appellate Division to consider. Contrary to the Defendants’ contention, the Appellate Division did not create a preservation trap. In order to preserve the contention that the additur was excessive and should have been reduced, the Defendants could 49 have simply argued that the additur was excessive and should have been reduced. However, the Defendants failed to make this argument to either the trial court or to the Appellate Division and the argument was not implicitly included in their challenges that the first verdict should not have been set aside and that the second verdict was excessive. The first time the issue was raised was when it appeared in the dissent of Justice Peradotto below. Furthermore, the fact that the Defendants never preserved an argument concerning the propriety of the additur amount which they rejected is not surprising because, as discussed below, rejected additurs are not subject to review. Point II – A Rejected Additur or Remittitur Followed by a Second Trial Is Not Subject to Appellate Review The excessiveness or inadequacy of an additur or remittitur is not subject to appellate review where the proposed stipulation has been refused and a retrial has taken place. New York has long recognized that the decision of whether to grant an additur or remittitur after a verdict has been set aside is within the sound discretion of the trial court and is not mandatory. Because an additur or remittitur does not have to be granted at all, a party is not deprived of a right if the amount of the stipulation is excessive or inadequate. In light of the discretionary nature of additurs and 50 remittiturs, no precedent exists for their review once a party has rejected the amount put forward be the trial court to avoid a retrial. A. No Right to a Proper Additur or Remittitur Exists Because the Use of Such Stipulations Is Purely a Discretionary Act The decision of whether or not to even use an additur or remittitur is wholly within the discretion of the trial court and is not mandated by statute or common law. Hence, the trial court was not required to set an additur or remittitur at all and could have simply set aside the verdict and ordered a retrial on damages pursuant to CPLR 4404(a). See O’Connor v. Papertsian, where this Court stated: The power of the trial court to grant a new trial on the ground that the verdict is inadequate or excessive is undisputed. Similarly, the trial court may deny a motion for a new trial on the condition that the party, other than the movant, stipulate to pay a greater amount or accept a lower, as the case may be. (309 NY 465, 471 [1956]; see also, Feathers v. Walter S. Kozdranski, Inc., 129 A.D.2d 975[4th Dept 1987]). The Defendants cannot claim to have been deprived of any right because the trial court was not required to set an additur at all. The Defendants were in no worse a position for rejecting an additur than if no additur been set at all, which was fully within the court’s authority. In Sherry (39 AD3d 986), a case relied upon by the Defendants and in the dissent of Justice Peradotto, a verdict of $15,500 was set aside as 51 inadequate without any additur used at all. A second trial resulted in a verdict of $113,000 (id. at 988). In Sherry, the defendants did not have the opportunity to stipulate to an additur, reasonable or otherwise. Nonetheless, the Appellate Division did not require a reasonable additur to be set for the defendants to accept or reject. Nothing was improper about the trial court’s failure to set a reasonable additur because the trial court was not required to use an additur or remittitur of any amount in the first place. No basis exists for the proposition that the discretionary act of setting an additur creates an additional right of review from the final judgment that would not have existed had the additur never been set in the first place. Contrary to the position of the Defendants, the trial court did not replace its prerogative for that of the jury in setting an additur. To the extent that any such exercise of prerogative occurred, it happened when the verdict was set aside, not when the additur was set. In this case, the Appellate Division unanimously affirmed the setting aside of the verdict. A party affected by an additur or remittitur has the ability to stipulate to the amount or reject the amount and proceed to a new trial such that the jury function is never usurped by the court (see O’Connor, 309 NY at 472). Additurs and remittiturs are solely used to bring “a just determination without involving the time and expense of another trial” (id. at 468). Where 52 the time and expense of another trial have already been incurred by the parties and the courts, review of the additur or remittitur serves no practical purpose. Indeed, what the Defendants were entitled to as a matter of law was a trial on damages, which took place, not an opportunity to enter into a stipulation which was always voluntary. A second trial should not be set aside even if a rejected additur was improper because additurs are not required and exist solely to promote efficiency. Further, the contention that the trial court or the Appellate Division is bound to a strict methodology in setting an additur or remittitur is at odds with the discretionary nature of such judicial devices. While many of the cases cited by the Defendants state that an additur should be set at the minimum amount a jury could award, other cases state that an additur can be set at the maximum amount a jury could award. See Ladd v. Parkhurst, 87 AD2d 971 (4th Dept 1982) and O’Connor, 309 NY at 473. No strict methodology exists which is appropriate for a discretionary function designed to facilitate resolution of cases without additional trials. Should a party believe than the amount set is inappropriate, the remedy of rejecting the stipulation is always available. As discussed above, no requirement exists for an additur to be reviewed as part of an appellate review of a final judgment following a 53 retrial on damages. The decision of whether or not to set aside an additur or remittitur is solely one resting in the sound discretion of the trial court and the Appellate Division (see Tate v. Colabello, 58 NY2d 84 [1983]). The decision to review and the extent of such review likewise remains in the sole discretion of the trial court and the Appellate Division. Given the fact that no court in New York has ever taken the extraordinary step of reviewing an additur or remittitur after retrial, the Appellate Division did not abuse its discretion in refusing to review the additur in this case. Consequently, even if the amount of the additur was improper, such cannot be said to be an abuse of discretion as a matter of law and should not be subject to reversal upon this appeal (see Mayers v. D’Agostino, 58 NY2d 696, 698 [1982]). B. No Precedent Exists for the Review of an Additur or Remittitur Following Its Rejection and the Completion of a Second Trial The Defendants cited no instances where a review of an additur or remittitur following its refusal and a new trial has ever taken place, nor did Justice Peradotto cite any in the dissent. Plaintiffs are also not aware of any cases in New York where such a review has occurred, much less found to be mandatory.2 As discussed above, in Gerbino (13 AD3d 1068), Deitsch 2 Indeed, Plaintiffs’ research has failed to uncover any case were such a procedure was followed, much less mandated, in any jurisdiction in the United States. The concept has been rejected, however. For example, see Poole v. Veterans Auto Sales & Leasing Co. (21 Fla. L. Weekly S69, 668 So.2d 189, 191 [Fla. 1996]), where the Supreme Court of Florida stated: “At the outset, it appears that the district court of appeal overlooked the 54 Textiles (111 AD2d 211), Infante (258 AD2d 333), and O’Brien (187 AD2d 419), additurs were not reviewed following a judgment after their rejection and a second damages trial. It has been the uniform practice of the courts of New York to review whether the judgment was properly set aside and whether the second verdict was reasonable without addressing the additur, the review procedure which was followed in this case (Oakes, 87 AD3d at 819). Thus, in Gerbino (13 AD3d 1068), a unanimous Fourth Department did not review or comment upon the propriety of the additur after it had been refused and a second trial had been conducted. According to Justice Peradotto in the dissent below, the Gerbino court followed the wrong procedure and should have addressed “the appropriateness of the court’s additur before addressing any issues raised with respect to the second trial” (Oakes, 87 AD3d at 822). Given the new and unprecedented approach suggested by the lone dissent below which is now adopted by the Defendants before this Court for the first time, the dissent’s rationale should be carefully reviewed. Justice Peradotto argues that the majority was mistaken in only addressing the decision to set aside the first verdict, a decision which the dissent also significance of the fact that Veterans refused the additur. Therefore, the only issue properly before the court below was the propriety of the order granting a new trial. We know of no authority which would allow an appellate court to even address the propriety of an additur, much less approve one part of it but disapprove another, when the additur has been refused.” 55 affirmed. As indicated above, the dissent instead argued that the propriety of both the court's order setting aside parts of the verdict and the appropriateness of the court's additur had to be addressed before considering the second trial (id.) Justice Peradotto cites three cases generally for this proposition: Sherry (39 AD3d 986), Zeigler (220 AD2d 345) and Libman (204 AD2d 856) (see Oakes, 87 AD3d at 822). None of these cases support the dissent’s argument because none of the cases actually involved an additur or a remittitur. Instead, the cases involve an initial verdict that was simply set aside without the use of an additur or remittitur followed by a retrial on damages. As such, the cases provide no basis for the proposition that the appropriateness of an additur must be reviewed prior to the issues of a second trial. Without such a foundational rationale, the entire analysis collapses. As an additional argument, Justice Peradotto cites Perlin (36 AD3d 495), Rivera (16 AD3d 274), and Carlos (301 AD2d 423) in support of the position that the Defendants “should be afforded the opportunity to stipulate to a proper additur” (see Oakes, 87 AD3d at 823). However, each of those cases involved appeals of an order setting aside a verdict and granting an additur or remittitur made prior to a party accepting or rejecting the 56 stipulation and participating in a re-trial. That is, none of the cases involve a situation where an additur or remittitur has been rejected and therefore have no direct bearing on this case. In contrast, by rejecting the additur and accepting a new trial, the Defendants have irrevocably plotted their course of litigation. In this case, the Defendants opted not to perfect an interlocutory appeal and rejected the additur in favor of a retrial on damages. Rejection of the amount set by the trial court is the ultimate remedy for a party that disagrees with its amount. Having rejected the amount and participated in a retrial, the Defendants cannot go back in time to be given the opportunity to stipulate to an amount in lieu of a second trial. Had the Defendants been earnest in seeking a different additur, they had the opportunity to appeal the amount along with the setting aside of the verdict prior to making their decision to accept or reject the additur. A party who rejects an additur has elected their remedy and is no longer aggrieved by any error in the setting of the additur amount. Because the initial jury verdict was set aside and because the Defendants refused the proposed additur by the trial court, there was no award remaining for the Appellate Division to review. An award for review only existed after the verdict was reached in the second trial (see Carter v. Shah, 31 AD3d 1151 57 [4th Dept 2006]). No authority exists for the review of an additur once it has been refused. Had the Defendants wanted reconsideration of the amount the additur, they had the opportunity to do so to the trial court or to take the order up on appeal and await the Appellate Division’s decision before accepting or rejecting the additur. Of course, given the Defendants’ position that they would reject any additur, there was no point in them taking the additur up on appeal following the first trial. In addition, the lack of precedents for the review of additurs following judgment after their rejection and retrial gave no notice to the trial court or the Plaintiffs that the additur would be challenged in this case, further supporting the position of the majority below that the issue was unpreserved. Indeed, the lack of such precedents thoroughly undermines any concept of implied preservation of challenges specifically related to the amount of the additur. Given the unique and novel nature of the defense argument, the Defendants should have been required to explicitly state and make their argument below. In discussing preservation, the majority below noted that the Defendants failed to raise the issue of the additur “before, during or after the second trial” (Oakes, 87 AD3d at 819). The court specifically points to the 58 fact that no action was taken with respect to the second trial rather than the first because once the verdict was entered following the second trial, the additur was not subject to review nor could the Defendants’ rejection of same be rescinded. The second verdict replaces the amounts set aside from the first trial and the additur becomes a complete nullity. Nothing existed to be reviewed as part of the final judgment once the additur was rejected and the second verdict awarded. C. The New Rule Proposed by the Dissent is Unworkable in Practice Permitting appellate review of additurs and remittiturs as part of an appeal from a final judgment after the completion of a second trial would create several problematic procedural pitfalls on a practical level. If such review was permitted, the second trial would have to be nullified whenever it was determined that an additur or remittitur was in an improper amount. Otherwise, the parties, having knowledge of the second verdict, would simply accept an additur if lower than the second verdict or reject it if higher, with the converse being true for a remittitur. In effect, the Appellate Division would be substituting its judgment for the jury’s. The second verdict would have to be nullified so that the decision to accept or reject the additur could be performed without the benefit of knowing the outcome of the second trial. As a consequence, allowing review of additurs and 59 remittiturs after a second trial would lead to yet a third trial whenever the new additur or remittitur was rejected. Inasmuch as review of additurs and remittiturs following a second trial could lead to the reversal of final judgments, the process would have a chilling affect on trial court’s willingness to voluntarily set additurs or remittiturs as part of their discretion. As discussed above, the trial court’s use of an additur or remittitur is purely discretionary. Trial courts would have incentive to avoid the use of additurs so as to eliminate the risk of reversible error if there was a challenge to the amount of the additur after a second trial had been completed. Instead, trial courts would simply set aside verdicts in favor of re-trials without exception, which defeats the very public policy behind additurs as discussed in O’Connor (309 NY at 468). On the other hand, the decision to review the propriety of additurs and remittiturs after the completion of damages retrials could be interpreted as to mandate the use of additurs or remittiturs every time a verdict is set aside. No additur or remittitur was used in cases such as Sherry (39 AD3d 986), Zeigler (220 AD2d 345), and Libman (204 AD2d 856) and the Appellate Division did not go back and evaluate what additur or remittitur should have been awarded. If the dissent below was correct, the defendants in those cases were deprived of their ability to stipulate to an appropriate additur just 60 as much as the Defendants in this case. Based on the new rule offered by Justice Peradotto and now urged by the Defendants, the trial courts should always be required offer stipulations of a proper amount, which would make such additurs or remittiturs mandatory rather than optional. Such a result runs counter to the inherent authority and discretion of the courts in setting additurs and remittiturs that has long been recognized in New York (see O’Connor, 309 NY at 470-72). Permitting the review of a rejected additur following a retrial permits parties to use impermissible benefits of hindsight. Where the second trial results in a favorable verdict for the defendant, it can simply be accepted. Where it is unfavorable, the defendant can challenge both the additur and the second verdict. Defendants could go forward with retrials without fear of unfavorable results any time they believed an additur was unreasonable because the verdict will be wiped away by the review of the additur. This creates a disincentive for parties to accept an additur or remittitur when a verdict is set aside. The long established practice of not reviewing additur or remittitur amounts after their rejection and retrial should continue to be followed in New York. The ability to refuse to stipulate to an improper additur or remittitur provides a sufficient remedy for those parties affected by them. 61 The results are no different than had the verdict simply been set aside without an additur or remittitur being used. By continuing to abide by existing precedent, the principles of efficiency, fairness and judicial discretion which undergird the use of additurs and remittiturs will continue to be promoted. D. The Propriety of the Amount of an Additur or Remittitur in a Prior Non-Final Order Is Not Brought up for Review from a Final Judgment On the basis of this same rationale, the portion of the Order setting aside the first verdict dealing with additur is not subject for review as it does not necessarily affect the final judgment. The additur was rejected and rendered a nullity and there was thereafter nothing for the Appellate Division or this Court to consider on appeal. As a nullity, the rejected additur was not brought up for review as part of the final judgment. In addition, the issue of the additur amount was not brought up for review as part of the final judgment inasmuch as the additur question was part of a non-final order which does not necessarily affect the final judgment (see CPLR § 5501[a]). Where multiple issues are part of an order and some affect the final judgment while others do not, those portions which do not necessarily affect the final judgment are not brought up for review (see Best v. Yutaka, 90 NY2d 833, 834 [1997] [part of order granting leave to amend answer did not necessarily affect final determination and not reviewable]). 62 An order necessarily affects a final judgment where the result of reversing that order requires a reversal or modification of the final determination (see ARTHUR KARGER, POWERS OF THE NEW YORK COURT OF APPEALS §52 at 323 [3d ed Rev 2005] citing Buffalo Electric Co. v. State, 14 NY2d 453 [1964]). The setting of a new additur would not require modification or reversal of the final determination because Defendants would still have the opportunity to reject a lower additur. If the Defendants once again rejected the additur, a new trial on damages would still be required just as it was in the first instance. The final judgment would not be necessarily affected because the issues involved in the retrial would not have changed (see Atkinson v. County of Oneida, 57 NY2d 1044 [1982]). Whether or not a reversal would affect the final determination would be completely contingent upon the actions of the Defendants, not a necessary outcome. Indeed, given Defendants’ position that all additurs should be rejected, the final determination would remain the same even if there was a reversal and the additur was reduced. Consequently, the issue of the additur was not brought up for review as part of the final judgment. 63 POINT III- The Trial Court and the Appellate Division Did Not Abuse Their Discretion by Denying Defendants’ Leave to Amend Their Answers Neither the trial court nor the Appellate Division abused their discretion in denying Defendants’ leave to amend their answers to assert the defenses of release and General Obligations Law §15-108. The defense of release must be pled in a responsive pleading or in a motion before service of a responsive pleading is required pursuant to CPLR 3211(e). Otherwise, the defense will be waived unless the Defendants obtain leave to amend their answers to assert it. The decision whether to grant or deny leave is a discretionary one that lies with the trial court (see Mayers v. D’Agostino, 58 NY2d 696, 698 [1982]). “The matter of allowing an amendment is committed ‘almost entirely to the court’s discretion to be determined on a sui generis basis’ ‘the widest possible latitude’ being extended to the courts” (Murray v. City of New York, 43 NY2d 400, 404-05 [1977] [citations omitted]). The policy of freely granting leave to amend “does not obtain on the eve of trial”, and such discretion “to grant an amendment of a pleading ‘should be exercised with caution where a case has been certified as ready for trial’” (Jablonski v. County of Erie, 286 AD2d 927, 928 [4th Dept 2001] [citations omitted]). The trial court’s “exercise of that discretion will not lightly be disturbed” 64 (Sewkarran v. DeBellis, 11 AD3d 445 [2d Dept 2004]). Further, “[w]here there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay” (Jablonski, 286 AD2d at 928). As stated in Smith v. Sarkisian: “[w]hen a case has long been certified as ready for trial, judicial discretion in allowing amendments should be ‘discreet, circumspect, prudent and cautious’” (63 AD2d 780, 781 [3d Dept 1978]) aff’d by 47 NY2d 878 [1979]). In addition, trial courts have been admonished to exercise their discretion sparingly when leave is sought on the eve of trial (see Morris v. Queens Long Island Medical Group, 49 AD3d 827, 828 [2d Dept 2008]). The trial court here properly exercised its discretion and did so in a prudent and cautious manner as required by controlling case law. In Mayers, this Court found that the trial court did not abuse its discretion as a matter of law where it refused to grant leave to amend an answer to assert the affirmative defense of collateral estoppel after a plaintiff had presented nearly all his evidence during trial (58 NY2d 696) Under such circumstances, the defendant waived the defense. (id.) The Defendants herein likewise waived the asserted defense of release by failing to plead the defense until well after the completion of the first trial. See also England v. 65 Sanford (78 NY2d 928, 930 [1991]), where this Court stated that it had no authority to review a discretionary remedy in the absence of an abuse of discretion as a matter of law. Neither the trial court nor the unanimous Appellate Division abused their discretion. A. The Proofs of Claim Were Not Accepted in Their Entirety and Were Therefore Null and Void The Appellate Division properly found that the purported releases were null and void because “PHICO’s liquidators avoided, or announced that they would avoid coverage” of a portion of the claim (Oakes, 87 AD3d at 819). The Appellate Division affirmed the decision of the trial court to deny leave to amend where Defendants brought their motion long after the completion of trial, offered no reasonable excuse for their delay and withheld pertinent information regarding the validity of the purported releases from the court and opposing counsel in making their application, inasmuch as Defendant Kaleida’s own actions led to the avoidance of coverage by the Pennsylvania statutory liquidator. The information withheld by Defendant Kaleida is essential and critical. The amendment sought by Kaleida would limit the Plaintiffs to the coverage available from the now bankrupt PHICO, but Kaleida never informed the court that their own actions put the ability of the Plaintiffs to access that very coverage in question. By discontinuing against Dent 66 without first receiving the permission of the New York State Liquidation Bureau or PHICO in liquidation, Kaleida caused a denial of coverage and a reservation of rights to be issued with respect to Dent’s liability (R. 11982). The trial court properly exercised its discretion to deny leave to amend pleadings in this case where the Defendants sought a binding judicial determination adversely affecting the Plaintiffs while not disclosing all of the essential facts and information that was necessary for the court to render a just and proper resolution. Defendant Kaleida presented the Proof of Claims to the trial court as though there were no issues surrounding their viability and simply needed to be mechanically applied by the court. Kaleida made no mention of the denial of the claim or the reservation of rights. Kaleida never mentioned the Proofs of Claim at any point leading up to, during or after the trial despite the fact that they were in conversations with the Liquidation Bureau and PHICO in liquidation. Correspondence and statements by counsel for Kaleida demonstrated that there had been ongoing discussion and communication between them long before the motion to amend was made (R. 11921, 11981-87). Indeed, several of the letters concern the reservation of rights and the denial of coverage against Kaleida by the Liquidation 67 Bureau. Kaleida was aware of the contents of a Proof of Claim prior to trial, having filed one themselves (R. 11745). The Plaintiffs only learned of the reservation of rights and denial of coverage through their own investigation in the validity of the Defendants’ claims after their motions had been made. The Proof of Claim itself is clearly conditioned upon full acceptance of the claim by the liquidator (R. 11743-44), which did not occur and has not occurred. By issuing a reservation of rights (R. 11981-89), the liquidator has sought to avoid payment of the claim, which renders it null and void (40 Pa Cons Stat §221.40[a] [West 2012]). Given the avoidance of coverage, the Proofs of Claim cannot function as releases. Plaintiffs contend that the failure to plead the defense of release prior to the trial was a strategic decision on the part of Defendant Kaleida. If Kaleida had not been found vicariously liable for Dent, then none of the issues in the reservation of rights would matter. With this tactic unsuccessful and a denial of coverage in place (R. 11982), Kaleida then attempted to have the defense asserted and applied without the Plaintiffs or the court learning about the releases’ invalidity. The Defendants argue for the first time that the reservation of rights by the liquidator was insufficient to make the Proofs of Claim null and void 68 despite the Proofs of Claim being explicitly conditioned on coverage being accepted by the liquidator. Because Kaleida withheld the information from the trial court they never made the argument at that time (R. 11724-30; 11775-77). Further, Kaleida opted not to discuss the reservation of rights in their brief on appeal to the Appellate Division (Supp. R. 43-52). Kaleida’s contention cannot withstand scrutiny, primarily because the Proofs of Claim are not conditioned on coverage being disclaimed. Instead, the proofs of claim are conditioned on coverage “being accepted by the Liquidator” (R. 11743-45). Further, by correspondence of April 9, 2008, Michael Scott of Proclaim America on behalf of the New York State Liquidation Bureau expressly and affirmatively denied coverage for a portion of the claim arising out of Kaleida’s vicarious liability for Dent, against whom Kaleida discontinued without approval from the liquidator (R. 11982). Because the Liquidation Bureau represents the first layer of coverage for the PHICO liquidation, the Bureau’s denial benefits the Pennsylvania liquidator as well. The PHICO liquidator would not even become involved until the New York Liquidation Bureau funds were exhausted. At the time the documents were submitted in connection with the motions, the second trial had not yet taken place and the damages were still based on the amounts awarded at the 69 first trial. At that time, only the Liquidation Bureau’s funds were at stake and a denial was offered. The PHICO Liquidator followed in the Liquidation Bureau’s steps with its reservation of rights but at that time it still was not clear whether the claim would have to go beyond the Liquidation Bureau. The PHICO Liquidator received the full benefit of the disclaimer made by the Liquidation Bureau. The Defendants’ assertions that no denial was made concerning a substantial portion of the claim are simply erroneous. Further, the Pennsylvania liquidator expressly reserved their rights with respect to the same claims as indicated in the affidavit of Edmund Much dated September 4, 2008 (R. 11989). The affidavit refers to another reservation of rights letter of August 27, 2008 which was not provided to court or counsel and was not part of the record (R. 11989, 12049). Plaintiffs were prejudiced by the lack of discovery on this issue. The liquidator’s actions did not represent full acceptance of coverage. Indeed, they plainly were avoiding the portion of coverage pertaining to Kaleida’s vicarious liability. Under the Pennsylvania statutes governing liquidation, the “release shall be null and void if the insurance coverage is avoided by the liquidator” (§ 221.40[a]). The liquidator’s avoidance of coverage for Dent’s vicarious liability renders the purported releases null 70 and void. Nothing about the Proofs of Claim or the Pennsylvania statutes requires a formal disclaimer as suggested by Kaleida. Instead, the liquidator clearly expressed that it would avoid coverage if its funds were sought on a portion of the claim which was already the subject of a denial of coverage by the Liquidation Bureau. Such was sufficient basis for the exercise of the trial court’s discretion to deny leave long after the trial of the action was over. Minimally, extensive questions of fact would exist regarding the validity of the Proofs of Claim as releases given the conduct of Kaleida that jeopardized the liquidator’s coverage. Such issues should have been subject to discovery prior to trial so that the parties could definitively determine the validity of the release and the legal consequences attending to the issue of Dent’s vicariously liability. The trial court and the Appellate Division properly determined that Defendant Kaleida should not have waited until after the conclusion of the trial and after post-trial motions had been argued before seeking leave to amend. Defendant Kaleida raises the issue of the applicability of New York Insurance Law §3420 and similar Pennsylvania laws regarding disclaimers verses reservation of rights for the first time to this Court on appeal. However, once an insurer entered the liquidation process, the laws cited by 71 Defendant Kaleida have no applicability. By its terms, Section 3420(d) is applicable only to “insurers” and is therefore irrelevant to the liquidators’ actions with respect to proofs of claim because the liquidator is not an insurer. The same is likewise true for all the Pennsylvania case law cited by Kaleida, which speaks to the duties and obligations between insurers and insureds. None of the cases involved the duties of a statutory liquidator managing the assets of a defunct insurer in a liquidation proceeding. The Defendants provide no authority, but only supposition by analogy to inapplicable laws, for the proposition that the statutory liquidator for PHICO has waived any rights. The Pennsylvania liquidator is bound to follow the procedures and laws of Pennsylvania in the administration of an insolvent insurer’s estate. This process, including the process by which claims are accepted or denied is overseen by the courts of Pennsylvania under the primary jurisdiction of the Commonwealth Court of Pennsylvania which oversees all liquidation proceedings (§ 221.40[d]). While Defendant Kaleida asserts that the claim has not been disclaimed to date, this is not supported by the record. Indeed, it is Plaintiffs’ understanding that their claim has been evaluated at zero by the Pennsylvania liquidator, which is by the Plaintiffs’ estimation, a complete 72 avoidance of the claim. In addition, Defendants’ position plainly ignores the denial of coverage issued by the Liquidation Bureau on behalf of the liquidator. Defendants’ reliance on Koken v. Reliance Ins. Co. (586 Pa 269, 893 A2d 70 [2006]) and the Pennsylvania Insurance Department Act, (§§ 221.1- 221.63) which is based upon the model act of the National Association of Insurance Commissioners, is misplaced in this case. Koken did not involve a situation where the liquidator avoided coverage, rendering the purported releases null and void. The Defendants fail to cite any authority to substantiate their position that the purported releases are enforceable where there has been an avoidance of coverage. Indeed, the portion of Koken cited by Kaleida explicitly states that releases are rendered null and void when coverage is avoided (586 Pa at 289, 893 A2d at 82). Further, Koken involved solely Pennsylvania litigants in a Pennsylvania action. New York, in contrast to Pennsylvania, has not adopted the model act. Consequently, New York does not require claimants to release a tortfeasor in order to submit a claim in a liquidation proceeding (Insurance Law § 7433). As a matter of policy, New York should not enforce such provisions involving New York litigants for claims arising in New York and being adjudicated in New York courts. Other states, when confronted with same 73 provisions, have refused to enforce the release provisions (see Burns v. Fernandez, 401 So2d 1033, 1039 [La Ct App 4th Cir 1981] [release provision in a Wisconsin proof of claim invalidated because it was given for no consideration as required by Louisiana law]). In this case, the release language should not be given effect as it is contrary to corresponding provisions of New York law, and the New York law should be applied. Accordingly, the Appellate Division did not abuse its discretion in affirming the trial court’s denial of leave to amend. B. No Abuse of Discretion Occurred Because the Proofs of Claim Cannot Be Applied Mechanically Due To Questions of Fact Requiring Discovery and Due To a Lack of Excuse for the Delay in Seeking Leave The trial court and the Appellate Division did not abuse their discretion in denying leave to amend the Defendants’ answers where leave was sought after the completion of trial, where additional discovery would have been required to apply the Proofs of Claim as releases, and where no reasonable excuse existed for the Defendants’ delay in seeking leave to amend. Although Defendant Kaleida made its motion for leave to amend without informing the trial court concerning the existence of the reservation of rights and did not raise the issue to the Appellate Division, at a minimum, additional discovery would have been required if the Proofs of Claim were 74 to be enforced as releases given the conditional nature of the release and the presence of documents which had not been provided to the court (R. 12049). The trial court properly determined that the Proofs of Claim could not simply be applied in a mechanical way as though there were no issues regarding their validity. In this regard, the trial court properly determined that the Defendants were asking the court to allow the amendment and rule that they were enforceable in a post-verdict summary judgment action that the court determined would be improper (R. 12045-50). Contrary to Kaleida’s contentions, courts are not required to allow amendments to pleadings whenever the non-moving party has some notice of the nature of the amendment. Such a mandatory reading of the CPLR 3025 removes the discretion from the trial court. Defendants cite Murray v. City of New York (51 AD3d 502 [1st Dept 2008]) in support, which involved an amendment to include a collateral estoppel defense. In Murray, the motion was not made post-trial or even on the eve of trial where scrutiny is higher, and it involved claims determined to be meritless in a prior proceeding (see id. at 503). However, as noted above in Mayers v. D’Agostino, this Court affirmed the trial court’s exercise of discretion to deny leave to assert a collateral estoppel defense when it was made in the middle of a trial (58 75 NY2d at 698). Notice of the defense would have existed in Mayers just as much as in Murray, but the court had discretion to deny when the motion was made after the trial proceedings had begun. In this case, the court’s exercise of discretion was even more appropriate because the motion was made long after the trial was over. Other cases cited by the Defendants are also not applicable. Matter of McIntosh v. State of New York (7 AD3d 890 [3d Dept 2004]) involved an amendment to a petition made immediately upon receiving an answer containing new factual information. Stajano v. United Technologies Corporation (5 AD3d 260 [1st Dept 2004]) involved the assertion of an affirmative defense that had already been the subject of extensive discovery and litigation. Like Murray (51 AD3d 502), the amendments in McIntosh (7 AD3d 890), Stajano (5 AD3d 260 ) and Shepherd v. New York City Trans. Auth. (129 AD2d 574 [2d Dept 1987]) were not made post-trial or even on the eve of trial or involved prejudice to the opposing party such as exists in the present case, nor do the cases support the proposition that notice of the underlying events absolves the existence of prejudice or excuses delay. In contrast, where amendments are sought late in proceedings the exercise of discretion denying leave is routinely upheld, even where knowledge of the underlying basis for the sought amendment is known. In 76 Sweeney v. Purcell Construction Corp. (20 AD3d 872, 873-74 [4th Dept 2005] [Pigott, J., Presiding Justice]), the Fourth Department reversed the trial court’s grant of leave to amend an answer to assert the affirmative defense of the exclusive remedy of the Workers’ Compensation Law where it was made on the eve of trial. Certainly, the non-moving parties were aware of the basis for the new defense. However, the Sweeney court stated that: “there is heavy burden on [the movants] to show extraordinary circumstances to justify amendment by submitting affidavits which set forth the recent change of circumstances justifying the amendment and otherwise giving an adequate explanation for the delay” (20 AD3d at 874). No such justification was offered by Kaleida in making its late application. Instead, crucial facts regarding non-acceptance of the Proofs of Claim were withheld from the trial court and the Plaintiffs. Kaleida’s amendment sought to limit the Plaintiffs to the coverage available from the now bankrupt PHICO, but Kaleida never informed the court that their own actions put the ability of the Plaintiffs to access that very coverage in question. Contrary to the position stated by Kaleida, Defendants are under a heavy burden to justify their late request to amend their pleadings, which they failed to meet. Their burden is all the greater in that they are seeking 77 the highly unusual remedy of amending an answer long after the completion of trial where the policy considerations warranting caution in the permitting of amendments are all the more heightened. It is as if a Plaintiff sought leave to add a new cause of action after a jury returned a verdict of no liability. At this late date, there is no reasonable basis to permit the amendment of the pleadings given the extreme prejudice to the Oakes. Even in Edenwald Contracting Co. v. City of New York, (60 NY2d 957, 959 [1983]) cited in support of Kaleida’s position, this Court stated that a motion to amend must be denied in the presence of significant prejudice such as that found in this case. The case of Whelan v. Kawasaki Motors Corp. (92 NY2d 288 [1998]) cited by the Defendants is also inapplicable. In Whelan, a motion for leave was sought after a verdict had been reached based on an eve of trial settlement. This Court found that the defendant’s answer could be amended because the plaintiff had entered into stipulations regarding the trial which would not have resulted in the plaintiff taking a different course of action, even if the amendment had been sought immediately upon the settlement prior to the start of the trial (id. at 293). In contrast to the facts of the present case, no prejudice existed in Whelan because there was no dispute about the 78 validity of the proposed amendment and its late assertion would have had no impact on the proceedings. In this case, Defendants have offered no reasonable excuse for their delay in seeking leave to amend its answer prior to the trial. The Proofs of Claims which are the subject of its motion are dated March 13, 2003, approximately five years prior to the trial in this action and two years before Kaleida’s amended answer was served (R. 162, 11958-59). Kaleida was aware of the status of PHICO in liquidation throughout this period of time as PHICO had been Kaleida’s own insurer and Kaleida was in communication with them and the Liquidation Bureau since at least 2006 per a reservation of rights letter of January 16, 2008 (R. 11986). In addition, the Oakes sought policy information from counsel for Kaleida prior to the Proof of Claim deadline in 2003 and inquired of counsel concerning the status of PHICO in the time leading up to trial, including at several pre-trial settlement conferences (R. 11934-39). The Oakes never attempted to hide the Proofs of Claim from Kaleida because Plaintiffs reasonably believed that Kaleida was fully aware of them and Plaintiffs were not required to assist Defendants in the pleading of affirmative defenses (see DiIorio v. Gibson & Cushman of New York, Inc., 166 AD2d 334, 335 [1st Dept 1990]). Further, the Oakes never received any 79 communication of any kind following the submission of the Proofs of Claim, despite their efforts to enter into settlement negotiation with Kaleida, the Liquidation Bureau and PHICO in liquidation. Pursuant to liquidation documents, claim payments would begin within ninety days of liquidation and claimants would be contacted regarding adjudication of their claims (R. 11769-71). Because the Oakes never received a response of any kind regarding the Proofs of Claim, they reasonably believed that the Proofs of Claim had been rejected, rendering them null and void. Indeed, the failure of Kaleida to assert the affirmative defense of release despite the fact that Kaleida was aware of same, confirmed the Plaintiffs’ understanding that the Proofs of Claim were null and void. Kaleida never mentioned the Proofs of Claim at any point leading up to or during the trial despite the fact that they were in conversations with PHICO in liquidation and the Liquidation Bureau. Correspondence and statements by counsel for Kaleida demonstrated that there had been ongoing discussion and communication between them long before the motion to amend was made (R. 11921, 11981-87). Indeed, several of the letters concern the reservation of rights and denial of coverage against Kaleida by the Liquidation Bureau. Kaleida was aware of the contents of a Proof of Claim prior to trial, having filed one themselves (R. 11745). 80 The delay in raising the affirmative defense of release appears to be a deliberate trial tactic by Kaleida in an effort to avoid the consequences of the reservation of rights. The basis for the reservation of rights was Kaleida’s unilateral decision to discontinue its third party action against Dent in the summer of 2006 to the prejudice of the Liquidation Bureau and PHICO in liquidation who cannot now seek indemnification from Dent (R.11981-89). If the jury had not found Kaleida vicariously liability for Dent, then there would be no reservation of rights. Likewise, if Dent had not been found liable, then there would have been no basis for the reservation of rights. The claims then might have been fully accepted which would have put Kaleida in a better position to assert the validity of the Proofs of Claim as releases. However, the strategy was unsuccessful because Kaleida was found to be vicariously liable for Dent. Following the trial, Kaleida made the motion to amend without discussing the denial or the reservation of rights, which Plaintiffs discovered via their own investigation. Kaleida had the ability to obtain copies of the Plaintiffs’ Proofs of Claim at any point in time during the five years leading up to trial, simply by making a phone call to PHICO in liquidation, which is how Kaleida obtained the Proofs of Claim in making their motion. No permission from the Oakes 81 was required or sought (R. 11746). Kaleida would have had notice of the Proofs of Claim from the time they were filed in 2003. Further, Kaleida has made no showing that it exercised due diligence in obtaining the Proofs of Claim of which it had ample notice for years leading up to trial. Plaintiffs assert that Kaleida was under a duty to exercise due diligence in preparing its defenses which further justified the denial of their motion (see DiIorio, 161 AD2d at 335 [defendant denied permission to assert release and GOL §15-108 defenses post-trial]; see also Arias-Paulino v. Academy Bus Tours, Inc., 48 AD3d 350 [1st Dept 2008] [leave to amend answer to include defenses of release and accord and satisfaction should not have been granted after delay in asserting them]). Defendants offered no excuse for their delay in asserting the affirmative defense of release before the trial court or in their briefs to this Court. Arguments that knowledge of the Proofs of Claim only came into their possession after the completion of the trial are not plausible in light of the record of communications between Defendant Kaleida and the liquidators. In light of the heavy burden on Defendants to offer a reasonable excuse for their delay when seeking leave to amend after the completion of trial and in light of their failure to offer an explanation of any kind for their 82 delay, it cannot be said as a matter of law that the trial court or Appellate Division abused their discretion in denying leave. C. The Plaintiffs Were Prejudiced by the Defendants’ Delay in Asserting the Defense of Release The trial court properly found that the Plaintiffs were prejudiced by the failure of Kaleida to amend its answer in a timely manner. Prejudice is defined as “a special right lost in the interim, a change in position, or significant trouble or expense that could have been avoided had the original pleading contained the proposed amendment” (Dawley v. McCumber, 45 AD3d 1399, 1400 [4th Dept 2007]). The Oakes were prejudiced in several respects by Defendants’ delay, including the inability to conduct discovery, a change in position or loss of rights, disadvantage in trial strategy, and additional delay. The delay in asserting the affirmative defense of release until after the trial prevented the Oakes from conducting discovery regarding the defense’s validity. Contrary to the assertion of Kaleida and consistent with the decision of the trial court and the Appellate Division, the releases were not unquestionably valid without further discovery. In fact, the Proofs of Claim were conditional on their very face such that they are “subject to coverage being accepted by the Liquidator” (R. 11743-44). Further, the language was the product of Pennsylvania law which further states that the releases are 83 “null and void if insurance coverage is avoided by the liquidator” (40 Pa. Cons. § 221.40[a] [West 2012]). Kaleida was properly precluded from asserting the defense of release where doing so would prevent the Plaintiffs from conducting discovery into the fulfillment of the conditions of the Proofs of Claim. In this case, the Pennsylvania liquidator as well as the Liquidation Bureau issued reservations of rights and denied coverage over Kaleida’s vicarious liability for Dent (R.11981-89). The ability to access liquidation funds was rendered questionable by Kaleida’s own account as its counsel stated concerning such funds prior to the completion of the trial, “there is some question actually as to the ability of the hospital to access that” (R. 11921). Such conduct rendered the purported release null and void because the Oakes never bargained for such a diminution in coverage (R. 12047). Given the PHICO liquidator’s expressed intent to avoid the Oakes’ claim, the Appellate Division properly concluded that the Proofs of Claim were null and void as releases (Oakes, 87 AD3d at 818-19). Nonetheless, if the Proofs of Claim were to be considered as potential releases, the Oakes should have been permitted to engage in discovery regarding the basis and merits of the reservation of rights and the status of the avoidance of the claim by the liquidators. Where a release is questionable, discovery into its 84 merits is permitted (see Paisley v. RTS Transp. Sys., 285 AD2d 973, 974 [4th Dept 2001] and Best, 90 NY2d at 833). In order to contest the validity of the releases, the Oakes should have been able to examine documents exchanged between Kaleida and the liquidators as well as documents of the liquidator concerning their avoidance of coverage. Depositions would also have been necessary had the amendment of the answer been permitted. Discovery concerning the validity of the Proofs of Claim as releases would not have to be limited to acceptance and avoidance of coverage pursuant to the conditions of the releases but would extend to other issues surrounding the validity of the releases. Issues of mutual mistake exist given the questions of fact surrounding the timing of the Proofs of Claim, the parties’ knowledge at the time the Proofs of Claim were signed, the consideration or lack thereof given for the Proof of Claim, and the anticipation of settlement negotiations that never occurred (see Paisley, 285 AD2d at 974). However, discovery was long closed and the trial was completed at the time Defendants sought to amend their pleadings which prejudiced the Plaintiffs who would need such discovery (see Tag Mech. Sys., Inc. v. VIP Structures, Inc., 63 AD3d 1504, 1506 [4th Dept 2009]). Further, the very delay which would be caused by the requirement to complete the additional 85 discovery long after the note of issue had been filed and the trial completed is prejudicial in itself as to warrant a denial of the Kaleida’s motion. In light of the issues requiring discovery if the amendment was permitted, the denial of leave was not an abuse of discretion. Additional prejudice existed because the Oakes adversely changed their position and lost rights due to Kaleida’s delay in raising its affirmative defense. The Oakes agreed not to pursue appeals against three co- Defendants, Steven R. Sobie, M.D., Buffalo Otolaryngology Group, P.C. and Ashok Nigam, M.D., following the completion of the first trial, who had substantial insurance coverage (R. 11924-26). The Oakes also discontinued an appeal against Dent (R. 11928). These actions were taken prior to Kaleida filing its very late motion to amend its answer. Had the Oakes been aware that recovery against Kaleida would be limited to the self-insured retention, the Oakes would not have taken such actions. In light of the change of position and loss of rights sustained by the Oakes, the denial of leave was not an abuse of discretion. The Oakes were also prejudiced in terms of altered trial strategy. In light of the reservation of rights and disclaimers attached to Kaleida’s vicarious liability over Dent, knowledge of the effect of the releases would have placed all parties on equal footing during the trial. As matters stood, 86 Kaleida had knowledge of the reservation of rights which Plaintiffs did not have. Instead of seeking to maximize Dent’s liability in comparison to Kaleida’s, Plaintiffs instead sought to establish Kaleida’s liability to the fullest and to minimize Dent’s involvement. In fact, Plaintiffs joined with Kaleida in making a motion to keep Dent off of the verdict sheet, which was not in the Plaintiff’s interest in light of the conditions attached to the Proofs of Claim and the reservation of rights issued by the Liquidation Bureau and the PHICO liquidator. The failure of Kaleida to seek leave until after the post trial motions were argued placed Kaleida in a superior position to the Plaintiffs concerning trial decisions. All parties should have been placed on equal footing regarding the impact that vicarious liability would have on the Proofs of Claim and Kaleida’s ultimate financial responsibility. Because Kaleida would still be obligated to pay Dent’s vicarious liability, Plaintiffs should have been permitted to present proof that would have emphasized Dent’s liability in comparison to Kaleida greater than the 19% share that was attributed to them by the jury. Review of the Record demonstrates that the bulk of the trial was spent contesting the hospital’s liability over the failure to read and report the head CT film. Had the Oakes been aware of the 87 affirmative defense, the Oakes could have sought to attribute greater liability to the co-defendants or to Dent. Kaleida’s application is untimely and the prejudice to the Plaintiffs is real. Plaintiffs were entitled to rely upon the answer and amended answer they received from Kaleida and proceed to trial accordingly. To allow a new affirmative defense months post-trial places the Oakes at a real disadvantage because they have been deprived of the opportunity to take steps to protect their interests in advance of trial had they been made aware of Kaleida’s attempt to assert the purported releases. Kaleida had literally years of opportunity to make its motion and raise the defense which would have allowed the Plaintiffs to respond, conduct discovery, and try the case accordingly in light of the fact that the purported releases were ineffective against Dent. The enormous expense, effort and time in preparing a case for trial including discovery is prejudicial in itself, which is sufficient grounds to preclude a motion to amend. The Oakes have already incurred significant expenses in this action and should not be required to incur more due to the failure of Kaleida to act in a timely manner. The additional delay in itself is also prejudicial (see Slivinsky v. Bloomerside Coop., 202 AD2d 491 [2d Dept 1994] [addition of Statute of Frauds defense on the eve of trial would 88 have prejudiced the plaintiff after two years of trial preparation and discovery] and Cameron v. 1199 Hous. Corp., 208 AD2d 454 (1st Dept 1994] [addition of Statute of Limitations defense denied where plaintiffs relying on waiver had engaged in motion practice and disclosure, placed the action on the calendar, and spent considerable time and expense in trial preparation]). The efforts undertaken in the present case far exceed those in the cases above. Indeed, it is the prejudice inherent in situations where attempts to amend pleadings are made on the eve of trial that cautions against granting such applications. The Defendants have engaged in a consistent pattern of delay in the resolution of this matter, including the failure to plead the defense of release until after the trial was conducted. The denial of leave was not an abuse of discretion and additional delays that would accompany the grant of such a motion should not be permitted. Defendant Kaleida’s reliance on Murray v. City of New York (43 NY2d 400 [1977]) is misplaced. In Murray, the defendant City of New York sought to amend its answer to plead the exclusivity of workers’ compensation as a defense after the plaintiffs had presented their case. Notably, no operative prejudice was found because the plaintiffs were offered the opportunity to re-open the case in light of the amendment sought by the City (id. at 404). Further, while the amendment had not been plead as 89 a defense by the City, the plaintiff presented proof of employment with the City and raised the issue in his own pleadings by acknowledging employment in the bill of particulars (id. at 406). In the present case, no proof regarding Proofs of Claim were presented at trial by any party and the Plaintiffs never pled anything in connection with the Proofs of Claim as part of their own pleadings. More importantly, the Plaintiffs could not be afforded the opportunity to re-open because the trial was concluded. Such operative prejudice is vastly different than the situation posed by Murray. As in Shine v. Duncan Petroleum Transp. (60 NY2d 22, 27-28 [1983]), which also involves the assertion of a workers’ compensation defense, amendment of pleadings should not be permitted, even where the non-moving party has knowledge of the underlying defense to be asserted, where additional prejudice such as delay or postponement will result. Significantly, unlike the workers’ compensation defense in Murray that clearly and admittedly operated as a bar, the validity of the affirmative defense of release sought by the Defendants is, at the very least, subject to multiple questions regarding its validity. Defendant Kaleida’s contention that the Proof of Claims can simply be enforced as valid releases under the 90 facts and circumstances of this case, where it is due to Kaleida’s own actions that the releases were made subject to avoidance, is utterly without merit. POINT IV. The Trial Court Properly Precluded the Defendants from Re-litigating Causation During the Second Damages-Only Trial Where Causation Was Determined in Full at the First Trial The trial court properly precluded Defendants from re-litigating the issue of causation at the second trial that was limited to damages only. The Defendants sought to present proof that Mr. Oakes’ injuries were a result of his underlying aneurysm rather than their acts of malpractice in failing to diagnose and treat an aneurysm before he suffered his devastating re-bleed on August 7, 1998. Defendants had a full and fair opportunity to raise these issues at the first trial and the trial court correctly determined that the issues of defendants’ negligence and causation were conclusively determined at the first proceeding such that the second trial would be for damages only without re-litigating issues already decided. The trial court only set aside the determination of the value of the Plaintiffs’ damages, not causation, which had already been determined. Defendant Mongia incorrectly states the law that apportioning damages to a pre-existing condition rather than Defendant’s negligence is solely an issue of damages rather than an issue of causation. 91 The Defendants were not limited in their proof at the first trial and could have attempted to show that Mr. Oakes’ injuries were the result of his underlying condition regardless of their negligence. At the second trial the Defendants attempted to re-introduce the testimony that they decided to forego at the first trial. In fact, Defendant Mongia provided an expert disclosure and a supplemental expert disclosure for the first trial on the issue of causation which was going to be presented by their expert, Walter Grand, M.D. (R. 17819-31). However, Defendants chose not to offer that proof, or any other proof, with respect to causation. The only evidence on causation came through the Plaintiffs’ experts, particularly Alan Jacobs, M.D., who attributed the whole of Mr. Oakes’ injuries to the failure of the Defendants to detect and prevent the second re-bleed that produced all of the Plaintiffs’ injuries (R. 6840). The record of the first trial is unequivocal that Mr. Oakes would have sustained no injuries or damages had the aneurysm been detected and treated in a timely manner, prior to its catastrophic rupture. On the basis of the first trial, the issue of attributing some portion of Mr. Oakes’ injuries to an underlying condition was fully resolved. This crucial point is ignored by the Defendants and undermines the whole of their argument. The trial court properly precluded testimony on a resolved issue, which was summarily and 92 unanimously affirmed by the Appellate Division without discussion because the Defendants’ arguments were so clearly based on faulty factual and legal premises. The faulty nature of the Defendants’ argument is demonstrated by the fact that, at the second trial, an expert disclosure was offered that contained language that was virtually identical to the disclosures offered at the first trial, with the exception that language was added to relate the testimony to damages instead of causation. Some of the testimony that was sought to be introduced at the second trial concerned “the findings of the CT scan conducted on July 23, 1998” involving liability, and that the aneurysm “was not a surgical emergency requiring immediate surgical intervention” among other areas related to causation (R. 17828-29). Said areas of testimony were covered by Dr. Jacobs at the first trial where liability, causation and damages were at issue (R. 5193-95, 5289-93). Dr. Grand offered no response to Dr. Jacobs’ testimony at the first trial, despite his expert disclosure. The court properly determined that the issue of causation was settled and determined at the end of the first trial, such that it could not be raised at the damages re- trial (R. 17887-88). Dr. Mongia did not request a proffer of Dr. Grand’s testimony in response to the trial court’s ruling. 93 A. The Trial Court Properly Treated Causation and Damages as Distinct Issues Which Have Been Conflated by the Defendants Defendants misconstrue this Court’s decision in McCahill v. New York Transp. Co. (201 NY 221 [1911]) as primarily addressing a question on the meaning of damages rather than addressing a question about what constitutes proximate cause. The McCahill Court stated that “the debatable question in this case has been whether appellant’s negligence was, legally speaking, the proximate cause of intestate’s death” (id. at 223). This Court analyzed the argument that while the defendant caused and may have hastened decedent’s death, the death would have occurred anyway due to the decedent’s underlying condition. This Court reasoned that a party can be liable for hastening a death that would have occurred anyway without negligence (id. at 224). The fact that the injuries would have occurred in the absence of negligence could be considered as to how much of the damages were caused by the defendant’s actions rather than the underlying condition (id.). Thus, a jury may apportion the damages between two competing causes, but not avoid liability altogether. Logically, causation impacts damages because a defendant is not obligated to compensate for damages he or she did not cause, but causation is nevertheless a distinct and separate legal issue from damages. McCahill is an affirmation of this principle, not its rejection, as argued by the Defendants. 94 McCahill involved a unified trial and the question was whether the defendant could be liable at all for hastening a condition that would have occurred even in the absence of the defendant’s negligence. Dunham v. Village of Canisteo (303 NY 498 [1952]) involves the similar question of whether the Defendant’s actions were a competent producing cause of Plaintiff’s injuries, when the injuries could have occurred even in the absence of negligence. The Defendants likewise misapprehend the Fourth Department decision in Monahan v. Weichart (82 AD2d 102 [4th Dept 1981]) by asserting that the case stands for the proposition that the natural history of an underlying condition relates solely to damages rather than causation. However, the case is clear that the issue is one of causation, not damages. The Fourth Department states that: “[t]he precise issue in this case is whether plaintiff’s proof on the issue of proximate cause was sufficient as a matter of law to create a question of fact for the jury” (id. at 107). An in depth analysis of the law of proximate cause, not the law of damages, then follows. In Monahan, the Appellate Division permitted a jury to consider whether, and the extent to which, a plaintiff’s knee injuries were caused by his physician’s negligence or by the natural history of his underlying 95 medical condition (id. at 107-08). The defendant could present proof to show that the injuries were caused by pre-existing condition rather than from the malpractice, but the case could not be excused altogether (id.). The Appellate Division recognized the difficulty in medical malpractice actions where there was a question of whether it is the “original affliction rather than the physician’s negligence which caused the ultimate damage” (id. at 107 [emphasis added]). Where there is evidence that the physician’s negligence did at least partially cause the ultimate damage, the case may proceed. However, damages would be reduced to the extent that they were caused by the underlying affliction instead of the negligence (id. at 108). The issue is still one of causation, not damages as suggested by the Defendants. Significant for its application to this case, Monahan was a unified trial in which all questions of liability, causation and damages were heard together. The Defendants were permitted to proceed with such evidence in this action as well, consistent with Monahan and the other cases cited by the Defendants. However, unlike the defendants in the cited cases, the Defendants opted not to present evidence demonstrating that any of Mr. Oakes’ ultimate damages were caused by his underlying affliction. Likewise, in McGovern, v. Attie (37 AD2d 961 [2d Dept 1971]) and Melito v. Genesee Hospital (167 AD2d 842 [4th Dept 1990]) cited by 96 Defendants, the Appellate Division clearly stated the principle that a defendant is only liable for the injuries which result from his or her own negligence rather than other factors or the underlying condition. Even the language from Stewart v. Olean Medical Group (17 AD3d 1094, 1096 [4th Dept 2005]) quoted by Defendants unmistakably deals with awarding only those damages “proximately caused” by negligence and not the illness itself. McGovern (37 AD2d 961), Melito (167 AD2d 842), and Stewart (17 AD3d 1094), like McCahill (201 NY 221) and Monahan (82 AD2d 102), involved unified trials where issues of negligence, causation and damages were considered together. While questions of proximate cause existed in those cases which had bearing on the issue of damages, no such question existed for the damages-only trial in the present case. It was determined at the first trial that Mr. Oakes’ injuries were caused by the Defendants’ conduct rather than from other causes. The Defendants presented no evidence that the Plaintiffs’ injuries were the result of the underlying condition rather than their failure to treat same and did not request any charge to that effect at the conclusion of the first trial. The Defendants were properly precluded from rearguing this issue along with liability at the second trial. 97 The case of Schneider v. Memorial Hosp. for Cancer Allied Diseases (100 AD2d 583 [2d Dept 1984]) also dealt with the same issues of apportioning damages between those caused by a defendant’s negligence and those of the underlying condition that would have occurred in the absence of negligence. The Appellate Division found that the evidence required a finding that some of the damages were caused by the underlying condition rather than the defendant’s negligence. Steinhauser v. Hertz Corporation (421 F2d 1169 [2d Cir 1970]) dealt with an issue almost identical to McCahill, above, and made the same finding. A pre-existing condition did not preclude recovery for damages, but a jury may determine whether the damages were caused by the defendant’s negligence or by the underlying condition itself. There is simply no legitimate way to construe the above cases as dealing solely with issues of damages rather than proximate cause. Defendants simply appear to conflate causation into either liability or damages, rather than treating it as a legal category in itself. While the courts have properly observed that causation can have bearing on the issue of damages, it is still a distinct issue. By the Defendants’ logic, any issue affecting damages may be raised at a damages retrial. For instance, damages would also be reduced by a 98 finding that a defendant had not breached a standard of care, that their percentage of liability should be reduced, or that a plaintiff had contributed to their injury, but this does not make such evidence proper at a damages- only retrial. Here, the only issue before the jury was the value of the damages sustained by the Oakes. Issues of causation were not relevant to the inquiry and would only be prejudicial. The cases above cited by Defendants did not involve a retrial on damages only following a trial where issues of liability, causation and damages were heard, and where only certain categories of damages were set aside. As such, none have any bearing on the issue at hand as they stand for the proposition that causation necessarily affects damages, which is not in dispute. Had the Defendants been precluded from offering proof on causation at the first trial, their argument would be more sound, but such is not the case. For the reasons stated by the trial court in its decision of July 21, 2009, the evidence of causation was properly precluded (R. 17887-88). B. The Trial Court Properly Limited the Second Trial to Issues of Damages Without Re-litigating Causation In this case, the trial court properly precluded Defendants from re- litigating those issues which were decided at the first trial and not set aside. The trial court accepted the jury’s finding of liability and that the Defendants’ acts of negligence were the causes of Mr. Oakes’ injuries, rather 99 than an underlying condition. The trial court only set aside the amount of the jury’s verdict as inadequate because it materially deviated from reasonable compensation based on the evidence at trial, given the fact that no evidence was presented by the Defendants attributing any of Mr. Oakes’ injuries to his underlying condition that would have occurred even in the absence of their negligence. The Plaintiffs’ proof was that their damages were entirely the result of the Defendants’ failure to diagnose and treat his aneurysm prior to its catastrophic re-bleed on August 7, 1998. The trial court never prevented the Defendants from presenting testimony or evidence that attributed Mr. Oakes’ injuries to his underlying condition to the jury during the first trial. Instead, the Defendants voluntarily decided not to present such evidence despite disclosing an expert on the subject matter. The issue being settled, they were not permitted to re- litigate the issue at the second trial. Defendants cite no cases where issue of causation was definitively determined at a prior proceeding and then allowed to be re-litigated at a second trial. The trial court did not abuse its discretion in limiting the issues at the second trial to only those aspects of damages that were set aside and not to issues which were previously determined. The trial court has discretion to order a re-trial on damages without re-litigating other issues, including 100 causation, which were fully and fairly disposed of by the first trial (see CPLR § 4404(a); Crawford v. Town of Hamburg, 19 AD2d 100 [4th Dept 1963]). Contrary to the Defendants’ position (Mongia Brief, 50), it is they and not the trial court who have conflated the issue of causation and damages. The trial court properly determined that the first trial settled the issue of whether the underlying condition of aneurysm was a proximate cause of the damages in the negative. Defendants seek to re-litigate the issue of proximate cause under the guise of damages despite the fact that the issue was conceded during the first trial by their failure to present evidence to rebut the Plaintiffs’ medical experts. The trial court did not prevent the Defendants from presenting testimony regarding whether the Plaintiff’s injuries were the result of an underlying condition of aneurysm or negligence. They had every opportunity to do so at the first trial. Having failed to offer any such evidence, the trial court properly precluded them from trying to do so at the second trial. Again, it should be noted that Defendant Mongia served an expert disclosure for Walter Grand, M.D. prior to the first trial which addressed the Plaintiff’s pre-existing medical conditions, his treatment and the causation of Mr. Oakes’ damages (R. 17819-26). Defendants chose not to present proof 101 on causation to the first jury through Dr. Grand or any other expert, though only Dr. Grand was disclosed on causation. Prior to the second trial, Defendants served another expert disclosure for Dr. Grand, nearly identical to the first, in an attempt to present the same testimony (R. 17827-31). Defendants had a full and fair opportunity to present testimony as to causation during the first trial and chose not to do so. Accordingly, the purpose of the second trial was the assessment of the value of the damages, not to attribute the causation of such because that issue had already been determined. To allow such testimony would have undermined the findings of liability and causation from the first verdict. The trial court properly exercised its discretion in determining that the issue need not be tried again. The Defendants offered no proof that the Plaintiff’s injuries would have existed in the absence of their negligence at the first trial. Under cross- examination from Defendant Mongia’s counsel, Plaintiff’s expert, Alan Jacobs, M.D., testified “beyond a reasonable doubt and beyond any doubt that had appropriate intervention been taken,” there would not have been dramatic deterioration and devastating neurological damage to Mr. Oakes (R. 6840). Such testimony was a factor in the trial court’s determination (R. 12281-82, 17887-87). 102 Defendants misstate the basis for the causation determination as well. The testimony during the first trial was that Mr. Oakes’s devastating neurological damages were a result of a second catastrophic bleed from a burst aneurysm. No evidence was presented that Mr. Oakes would have suffered any significant damages from his aneurysm had it been treated prior to its catastrophic rupture (R. 6835-40). Defendants take the testimony of Dr. Jacobs out of context by asserting that the Plaintiff faced a risk of mortality even if the aneurysm had been detected. Instead, Dr. Jacob’s testimony generally related to the risk of mortality associated with aneurysms that were left untreated (R. 5156-57). Further, he disagreed with numbers and statistics presented to him by counsel for Dr. Mongia and stated “we cannot use the same data” with respect to the risks specifically faced by Mr. Oakes (R. 6787-88). Dr. Jacobs testified that the purpose of treatment was to prevent a re- bleeding event from occurring and that intervention would have prevented any serious neurological damage (R. 5214, 6840). Based on the evidence and testimony presented at the first trial, there was simply no basis for the jury to attribute any damages to the underlying condition. The trial court properly precluded the reintroduction of the same evidence on causation at the second trial, which had not been presented during the first. 103 Dr. Jacobs’ testimony does not support a conclusion that Mr. Oakes would have had any appreciable degree of neurological damage or deficit had he been treated timely. Instead, his testimony was that this was an all or nothing event in which Mr. Oakes would have sustained either major deficits upon a re-bleed without intervention, or no neurological damage with intervention. Further, the fact that Mr. Oakes was able to be successfully treated following the rebleed demonstrates that the aneurysm was susceptible to treatment in the first instance. Defendants presented no testimony to rebut Dr. Jacobs’ strong and unequivocal testimony that all of Mr. Oakes’ damages were preventable and were caused by the Defendants’ failure to provide timely diagnostics and treatment. Defendants’ expert, Walter Grand, M.D., who reviewed Dr. Jacob’s testimony (R. 7889) and who was disclosed as a witness on causation (R. 780), did not dispute Dr. Jacobs’ testimony. Furthermore, both the trial court and the Appellate Division rejected the contention, urged by the Defendants below, that the inadequate first verdict was justified because the causation of the injuries was in dispute based on the testimony of Dr. Jacobs. Dr. Jacobs’ testimony allowed for no such conclusions. 104 C. The Extent of Damages Was Fully Proved by the Plaintiff The Defendants cite to several lines of cases which are readily distinguishable from the facts and procedural posture of this case. In this regard, Defendants cite cases where a defaulting defendant may contest damages following a default judgment where causation was not previously determined. Such cases are not applicable in the context of this case where issues of causation were heard at the first trial. Where an issue has been fully and finally litigated, defendants are bound by the prior determination and cannot re-litigate the issue at a second trial. The Defendants never asked the trial court to set aside the determination with respect to the causation of the Plaintiff’s injuries. In addition, Defendants’ arguments regarding default cases were also disputed in Gray v. Jaeger (49 AD3d 287 [1st Dept 2008]), where defendants were precluded from offering evidence of causation at a damages-only trial in a case where an answer had been stricken. A trial court has discretion in determining the issues to be heard based on the particular facts and circumstances of each case. Syrkett v. Burden (176 AD2d 938 [2d Dept 1991]) also involved a damages trial where liability was determined by the striking of the Defendant’s answer. Just as in the default cases, the Defendants’ reliance on 105 Syrkett is misplaced because unlike the present case, causation had not been tried and determined at an earlier trial. Further, Defendants’ reliance on Syrkett to argue that the Plaintiff failed to prove the extent of his injuries during the second trial is erroneous because the Plaintiff presented sufficient testimony and medical records to prove his injuries. In this regard, the Plaintiff presented evidence of injuries which were characterized as “catastrophic” and “devastating” at trial by defense counsel and their experts (R.12924, 14917, 15339, 15731-32). Plaintiff presented the testimony of Janet Kent, M.D., one of his treating physiatrists while in rehabilitation at ECMC. Dr. Kent testified that Mr. Oakes had a long and difficult rehabilitation following the rupture of his aneurysm on August 7, 1998 in which Mr. Oakes underwent numerous procedures including angioplasty, ventriculostomy, craniotomy, placement of a feeding tube and tracheostomy (R. 18106-07, 18452, 18456, 18467, 18477, 18485, 18490, 18500, 18508, 18517, 18525, 18535). He suffered from several infections including MRSA (R. 18266, 18747). While at ECMC, Mr. Oakes developed hydrocephalus that required the placement of a shunt and suffered from cognitive deficits, aphasia, quadriplegia, neurogenic bowel and bladder, pressure sores and depression (R.22098-102, 23093, 23108-13). 106 The Plaintiff further proved the extent of his damages upon his return home through evidence that Mr. Oakes continued rehabilitation but continually required care twenty-four hours a day for more than ten years to manage even the most basic of daily living activities and to prevent further deterioration (R. 12872-73, 14217-23, 14249-52). Mr. Oakes’ deficits were shown to be permanent. He could not walk even with maximum assistance and needed a wheelchair. He could not transfer without assistance of a lift (R. 12938-39). Mr. Oakes wore a diaper at all times because of leakage from his urine pouch or a bowel movement and required the use of enemas for bowel management (R. 14210-13). Mr. Oakes could not dress himself or even roll in bed without assistance (R. 12660, 14225-26). Even combing hair or brushing teeth required assistance and had to be gone over again by a helper. He could not bathe without assistance. He could not cook but could eat if food was placed before him, although he had to be monitored for swallowing (R. 12524, 12591-94, 12733, 14217-23). He regained limited use of his right upper and lower extremities, but had hemiplegia rendering the left limbs unusable (R. 14238-41). Mr. Oakes never recovered from his injuries. The Plaintiff also proved the extent of his injuries by demonstrating that Mr. Oakes also had cognitive deficits impacting memory, cognition, 107 affect and personality. Dr. Jacobs testified that he suffered from severe and widespread brain injury to his frontal lobe, the corpus callosum, the thalamus, the pons, and the basal ganglia (R. 12811-15). Neuropsychological testing as testified to by neuropsychologist, Mark Schachter, Ph.D., demonstrated wide ranging injuries including a drop in intelligence of forty points to an IQ of 63, loss of memory, perseveration, loss of executive functioning and personality change (R. 13769,13774, 13815). Examples of his perseveration were given where Mr. Oakes would eat or play computer games until they were taken away from him. Mr. Oakes suffered from depression and dementia that were organic in nature and not treatable (R. 12870-71, 13801-09). Even Defendant’s expert did not question the extent of Mr. Oakes’ injuries and was not sure why he was being called upon in the case (R. 15863). Defendant Kaleida consulted and disclosed a neuropsychologist but chose not to have him testify (R. 17131). In sum, Plaintiff presented evidence at the second trial concerning injuries of the highest magnitude possible that were a direct result of the Defendants’ negligence. The damages proof at the first trial was essentially the same. Defendants cannot seriously challenge the sufficiency of Plaintiff’s proof regarding the extent of his injuries. The damages verdict 108 from the second trial was sustained by both the trial court and at the Appellate Division. Furthermore, the evidence presented by the Plaintiffs at the first trial unequivocally demonstrated that it was the Defendants’ negligence that led to the Plaintiffs’ devastating injuries, not some other underlying cause. The Defendants presented no rebutting evidence in response. The trial court, as affirmed by the Appellate Division, properly determined that the Defendants were bound by the determination. Unlike in Syrkett (176 AD2d 938), where no prior trial had taken place in which liability, causation and damages had all been heard, all the issues were fully contested in the present case. In further contrast to Syrkett, the Defendants presented no evidence questioning causation at the first trial. Also, the plaintiff in Syrkett (176 AD2d at 939) presented a questionable no fault threshold injury far removed from the injuries sustained by Mr. Oakes. The Defendants’ discussion of Beck v. Spinner’s Recreational Ctr. Inc. (78 AD3d 1695 [4th Dept 2010]) and Olmstead v. Pizza Hut of Am., Inc. (81 AD3d 1223 [3d Dept 2011]) also misapplies the law. In Beck, the Appellate Division distinctly stated that defendants did not contest the causation of burn injuries but contested the cause of the plaintiff’s spinal injuries. However, in Beck, the issue of causation again had not been tried 109 previously, unlike the present case. The same holds true in Olmstead where causation had not been tried previously (see 81 AD3d at 1223-24). In this case, unlike Beck, Olmstead, and every other damages-only case cited by Defendants, causation had already been fully litigated, so there was no issue remaining to be heard at the damages re-trial except the extent of the injuries. Defendant Mongia also raised several new arguments to this Court regarding causation which had not been raised below. Defendant Mongia raises an argument for this first time that because a “loss of chance” theory was presented during the first trial, the Defendants should be permitted to present evidence concerning causation at a second trial on damages alone. However, no evidence was presented at the first trial that any of Mr. Oakes’ injuries would have resulted had the aneurysm been diagnosed and treated prior to its rupture. Instead, Plaintiffs’ experts testified that a re-bleed and the injuries caused by it would have been prevented in their entirety with proper treatment. Having conceded causation at the first trial, Defendants could not take it up again at the second trial. Defendant Mongia also raises for the first time before this Court an issue regarding mitigation of damages defenses and attempts to relate same to the facts of this case. No claim has been made that the Plaintiff failed to 110 mitigate his damages in this action and no evidence of same was presented during the first trial. To the contrary, the evidence demonstrated that the Plaintiff repeatedly sought to obtain medical intervention from the Defendants, who ignored his persistent headaches, nausea, vomiting and other associated signs and symptoms of a heralding bleed leading up to the catastrophic rupture of his aneurysm (R. 4160-4282). No evidence was presented that the Plaintiff could have done anything to lessen his damages once the aneurysm burst due to the Defendants’ failure to diagnose and treat it. In fact, Plaintiff participated in physical therapy for years following his injury to little avail (R. 6658-60). Of course, Defendants also contended Mr. Oakes would be able to walk based on his hope in miracles, but this contention was also soundly rejected by the trial court and Appellate Division (R. 11505; 6584-85, Supp. R. 19). Defendant Mongia’s discussion of the jury charge in bifurcated liability-only trials, again raised for the first time on this appeal, is also fully off point. This case did not involve a bifurcated liability-only trial followed by a damages trial. The first trial was a unified trial involving all issues of liability, causation and damages. The bifurcation charge has nothing to do with this case other than to illustrate why the cases involving damages-only trials cited by the Defendants are not relevant. In those cases, causation was 111 expressly deferred until the damages phase while causation was determined along with all other issues during the first trial in this case. Also, the charge expressly speaks to the issue of when causation would be heard showing that it is a distinct issue from damages. Defendant Mongia’s discussion of the pre-existing injury charge, also raised for the first time on this appeal, is also irrelevant to the facts of this case. None of the Plaintiff’s injuries pre-existed the catastrophic bleeding event that resulted from the Defendants’ negligence. Defendants presented no proof at the first trial that any of the Plaintiffs’ injuries were pre-existing. To the contrary, the evidence demonstrated that the Plaintiff’s injuries were the result of the devastating re-bleed of August 7, 1998 which the Defendants negligently failed to prevent. None of the Defendants ever requested the pre-existing injury charge in the course of the first trial and the charge was never read. Further, no objection was made to the fact that the pre-existing injury charge was not read to the jury. The fact that Defendants assert that they should have been able to present such proof and seek the charge at the second trial is completely undermined by the fact that it was never sought during the first trial. The factual and procedural history of this case are completely ignored or misunderstood by assumptions underlying the Defendants’ arguments. 112 The trial court properly determined that the issue of causation had been fully and finally determined at the first trial. The Plaintiffs offered testimony that the Plaintiff’s injuries were the result of the failure to diagnose and treat his aneurysm before it catastrophically burst on August 7, 1998. Plaintiff’s expert testified that the Plaintiff would not have sustained any of his eventual injuries had he been treated in time. The Defendants offered no rebuttal to the testimony despite disclosing an expert on the issue, who took the stand but never testified on the issues of causation. The trial court properly precluded the Defendants from offering the testimony at the second trial which they failed to elicit at the first trial when they had their opportunity. The trial court did not deprive the Defendants of an opportunity to present testimony but required them to abide by the proof and decision of the first trial. POINT V. Kaleida Was Properly Found To Be Vicariously Liable for the Negligence of Dent Neurological Institute In order for the jury’s finding of liability against Dent and the corresponding vicarious liability of Kaleida to be overturned, Kaleida “faces the lofty hurdle of showing that ‘there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at 113 trial.’” (Adamy v. Ziriakus, 92 NY2d 396, 400 [1998] citing Cohen v. Hallmark Cards, 45 NY2d 493, 499 [1978]). Kaleida cannot surmount that hurdle as ample evidence was presented to the jury to support the finding of negligence against Dent as well as finding Kaleida to be vicariously liable for Dent. 3 It should be noted, however, that Defendant Kaleida is not challenging the finding of vicariously liability on this appeal but only the sufficiency of the evidence with respect to the finding of negligence on the part of Dent. Inasmuch as Kaleida made no mention of Dent’s liability in its application to the Appellate Division for leave to appeal to the Court of Appeals (SR. 857, 910-914), Defendant Kaleida has failed to preserve this question for review. See Quain v. Buzzetta Construction Corp., 69 NY2d 376 (1987). The Oakes presented a series of witnesses who testified extensively concerning the relationship between Kaleida and Dent and Dent’s role in the reading, interpretation and reporting of CT films of the head. Further, the Oakes presented expert testimony concerning the deviations from the 3 Kaleida attempts to buttress its argument regarding Dent’s negligence by noting that Plaintiffs sought to remove Dent from the verdict sheet (Kaleida Br., 72). Such is a prime example of the prejudice caused by the failure of Kaleida to move to amend its answer to include the defense of release prior to the completion of trial. Kaleida was aware of the consequences over the denial of coverage that attached to their vicarious liability over Dent, while the Plaintiffs were not. Had the Plaintiffs’ been informed in a timely manner, Plaintiffs would not have sought to remove Dent from the verdict sheet. In any event, the trial court properly included Dent despite Plaintiffs’ and Kaleida’s application. 114 standard of care for the failure to report the head CT films. Kaleida has not challenged the jury’s verdict finding that Kaleida itself was affirmatively negligent on the merits and the same facts also support the finding of liability against Dent. In this regard, Plaintiffs’ proof of Defendant Kaleida’s deviations from the standard of care and resultant injuries are unchallenged in this appeal. In addition, the evidence is to be viewed in the light most favorable to the party prevailing at trial with every favorable inference to be drawn therefrom (see Niagara Vest v. Alloy Briquetting Corp., 244 AD2d 892, 893 [4th Dept 1997]). Extensive evidence was presented during the trial that Kaleida and Dent entered into a business relationship wherein Dent would read, interpret and report on all head CT films taken at Millard Fillmore Suburban Hospital (Suburban) while on site radiologists read all other CT films. Ellen Levea, the former manager of the Suburban radiology department testified concerning the policies and procedures by which Dent read head CT films and that the policies and procedures were established by Dent with the assistance of Kaleida (R. 2440-41, 2806-07). She testified concerning the lack of any paperwork or log records when Dent was reading head CT films offsite via teleradiology while paperwork accompanied films for reads by on-site radiologists. Her testimony was that Dent would utilize hospital 115 equipment and personnel in reading and reporting the films. She further testified that Dent and Kaleida worked together in the processes of reading and reporting head films and that Dent would be contacted by the technicians regarding any problems they encountered (R. 2449-55, 2482-89, 2504-08, 2519-46, 2553-79, 2631-33, 2739-43, 2764-85). It was undisputed at trial that patients were not told about Dent’s role (R. 2495-99). CT technician Sandra Mohr also testified as to Dent’s involvement in the reading of head CT films, how she worked with Dent in providing them with images and the lack of written documentation. She further testified that patients were not told of Dent’s involvement (R. 2882-2912). CT technician Karen Irving also testified to Dent’s involvement with procedures with differing details (R. 2970-72, 3001-33, 3038-39, 3058-62). Ashok Nigam, M.D. testified that Dent was responsible for the reading of head CT scans and that radiologists were not permitted to read the head CTs (R. 3433-40). This is consistent with Suburban’s policies and procedures which placed responsibility for the head CTs on Dent (R. 21677). Dr. Nigam also testified that Dent had an exclusive contract with Suburban to read the head CT scans and it was Dent’s responsibility to handle any problems related to a head CT scan (R. 3664-67, 3672-74). 116 Laszlo Mechtler, M.D. from Dent testified on behalf of Kaleida concerning the business relationship between Dent and Kaleida and that only Dent read head studies with around the clock coverage. He testified about the methods Dent used in reading studies and that Dent used Kaleida’s equipment, personnel and facilities in making their reads. He further testified concerning the procedures established by Dent for Kaleida personnel to follow, including how to contact them and the formats for the films (R. 8262-77, 8297-98, 8325-32, 8347-55, 9656-69, 9723-29, 9762-68, 9777-78). Dr. Mechtler stated that Dent was solely responsible for the imaging of the brain (R. 9764). Vernice Bates, M.D., also from Dent, testified on behalf of Kaleida concerning the long standing business relationship between Dent and Kaleida and the policies and procedure Dent created for Kaleida to follow in reading, interpreting and reporting the results of head CT scans (R. 8652-56, 8707-13, 8721-31, 8772-73, 9535-52). Dr. Bates further testified that a written report should always exist for an interpretation, which Dent was responsible to produce (R. 8764-66). Dr. Bates also testified that Dent and Suburban were both responsible for different aspects of the report of head CT films (R.9450-56, 9466-71). 117 Robert Lutnick, M.D. testified on behalf of Dr. Nigam concerning the roles of Dent and the radiologists over reading head CT films. He testified at length that Dent and Dent alone was responsible for head CT scans at Suburban and was responsible for producing a written report of them (R. 9255-64, 9268-74, 9328-32). The evidence at trial supported a conclusion that the films were never read. No written documentation was produced that a stat study was performed. In addition, a formal report was missing, as well as copies of the report from the hospital, Dent, and Dr. Sobie’s files (R. 2573-74, 5885). In addition, Dr. Freer requested a copy of the reports from Suburban on August 3, but was only sent a copy of the sinus CT report (R. 8547-48, 8569-70). No bill for reading the head CT scan was ever sent by Dent, which would have been triggered by a report (R. 4233, 5898). As a result, a jury could have properly found both Dent and Kaleida at fault for the failure to interpret and report the July 23, 1998 head scan of the Plaintiff. The Oakes also provided expert testimony from James Abrahams, M.D. who stated that the standard of care requires that all reports be reduced to writing, whether final or preliminary stat reports and that all studies must be reported. He testified that the procedures utilized by Dent and Kaleida where all communications were only verbal and by telephone violated that 118 standard of care (R. 4690-92). He also stated that the standard of care required procedures on the part of the hospital and the interpreter to ensure that all films were read and reported in writing, which was violated in this case (R. 4679-4701, 4884-91). Contrary to the position of Defendant Kaleida, Dr. Abrahams’ testimony was directed to the standard of care to be followed by both Dent and Kaleida concerning the policies and procedures by which films were read, interpreted and reported. As summarized above, the testimony was that both Dent and Kaleida were responsible for the process by which the head films were read, interpreted and reported at Suburban. Defendant Kaleida ignored Dr. Abrahams’ testimony with respect to the standard of care and Dent’s violations thereof. The jury was entitled to find that Dent, as an institution, was negligent due to the policies and procedures put in place which violated the standard of care with respect to the CT films and which led to the failure of the Defendants to read, interpret and report the head CT film. The jury could have found liability based on the failure of Dent to have procedures in place to ensure that all films were read in the first place. The evidence also permitted a jury to find Dent negligent for its policies and procedures which did not require all film reads to be reduced to writing and allowed for purely 119 verbal communication (R. 4686, 4690-91). Dr. Abrahams testified succinctly that the policies with respect to teleradiology performed by Dent did not comply with the standard of care (R. 4700-01, 4884-87). On the basis of such testimony, a jury could have found Dent negligent without finding negligence on the part of the individual physicians, particularly where it was unknown which physicians were on duty at Dent at the time the read was to have occurred (R. 3592, 3773-74, 8745-48). Based on the above, legally sufficient evidence was produced that Dent was extensively involved with Kaleida in the reporting of head CT scan results such that they could be held liable when no report was made, as happened with Mr. Oakes’ head CT scans of July 23, 1998. Accordingly, a valid line of reasoning and permissible inferences exists that supports the jury’s verdict finding that Dent was negligent, which should be upheld. Further, given the contrasting testimony between the experts on both sides of the case, the jury could plausibly accept the testimony of the Plaintiffs’ witnesses as more credible and worthy of belief than Defendants’ (see Russell v. City of Buffalo, 34 AD3d 1291 [4th Dept 2007]). Even in the absence of expert proof, the failure to report a study and the inadequacy of the Dent and Kaleida’s policies and procedures could have rendered the Defendants liable under ordinary negligence. On the basis of 120 the fact evidence produced at trial and stated above, the jury could have applied everyday experience and common knowledge without reference to professional standards and expertise to their determination that a reasonably prudent person would be able to foresee the consequences of the failure to read and report radiological studies (see Kerker v. Hurwitz, 163 AD2d 859 [4th Dept 1990]). The Oakes presented proof that the head CT was positive for indications of blood from Dr. Abrahams, Dr. Jacobs and Dr. Nigam (R. 4726-27, 5193-96, 7327-31). Dr. Jacobs testified that positive CT findings would lead to further diagnostic care and treatment that would have prevented his injuries from happening (R. 5233-37, 6840). Dr. Abrahams also testified concerning the follow up testing and treatment to be done following a finding of a subarachnoid hemorrhage (R. 4749-50). Consequently, Plaintiffs provided more than sufficient proof that Dent was negligent for their failure to read, interpret and report the results of the head CT scan of July 23, 1998 and that such negligence was a proximate cause of the Plaintiff’s injuries. 121 CONCLUSION The Memorandum and Order of the Appellate Division, Fourth Department entered August 19, 2011 should be affirmed. The issue concerning the amount of the additur raised in the dissent of Justice Peradotto was not raised to the trial court or to the Appellate Division by the Defendants and therefore was not preserved. Further, the Appellate Divisions are not required to review the amount of an additur following its rejection and following a second damages trial. This is a novel procedure which has previously not been followed. Accordingly, the majority below did not err by not reviewing the amount of the additur. The proper procedure was to review of the setting aside of the first verdict and thereafter to review adequacy of the second verdict, which was followed by the Appellate Division. The trial court and the Appellate Division did not abuse their discretion by denying leave to the Defendants to amend their answers to assert the affirmative defenses of release and General Obligations Law §15- 108. The Appellate Division properly found that the purported release provisions of the Proofs of Claim were null and void due to the avoidance of coverage by the liquidator. Further, a sharp factual dispute as to the validity 122 of the Proofs of Claim existed in light of the reservation of rights for which the lack of discovery prejudiced the Plaintiffs. The trial court and the Appellate Division also did not abuse their discretion by limiting the issues at the second trial to the assessment of damages alone. The issue of causation sought to be reintroduced by the Defendants had been fully litigated and determined during the course of the first trial and was properly precluded. Finally, given the extensive lay and expert testimony presented at trial, the trial court and the Appellate Division properly determined that sufficient evidence existed to support the finding of liability against Dent Neurological Institute for which Kaleida was vicariously liable. 123 For the above stated reasons, the appeals of the Defendants should be denied in their entirety and the Memorandum and Decision of the Appellate Division, Fourth Department entered August 19, 2011 affirming the final judgment entered December 23, 2009 should be affirmed in its entirety. DATED: August 6, 2012 Respectfully submitted, Buffalo, New York FRANCIS M. LETRO, ESQ. By:________________________________ RONALD J. WRIGHT, J.D., Ph.D., of Counsel Attorneys for Respondents Oakes The Dun Building - 10th Floor 110 Pearl Street Buffalo, New York 14202-4111 Tel: 716-852-1234