        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

38
CA 14-01220
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


JASON THOME, PLAINTIFF,

                    V

BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, PICONE
CONSTRUCTION CORPORATION, AND CHRISTA
CONSTRUCTION, LLC, DEFENDANTS.
----------------------------------------------    MEMORANDUM AND ORDER
CHRISTA CONSTRUCTION, LLC, THIRD-PARTY
PLAINTIFF-RESPONDENT,

                    V

INDUSTRIAL POWER & LIGHTING CORP., THIRD-PARTY
DEFENDANT-RESPONDENT,
AND FISHER CONCRETE, INC., THIRD-PARTY
DEFENDANT-APPELLANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (ARTHUR A. HERDZIK OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.

HISCOCK & BARCLAY, LLP, BUFFALO (MICHAEL E. FERDMAN OF COUNSEL), FOR
THIRD-PARTY PLAINTIFF-RESPONDENT.

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered April 10, 2014. The order, among other things,
denied in part the motion of third-party defendant Fisher Concrete,
Inc. for leave to serve a second amended third-party answer.

     It is hereby ORDERED that said appeal from the order insofar as
it denied the motion to preclude expert testimony is unanimously
dismissed, and the order is modified on the law by granting that part
of the motion seeking leave to serve a second amended third-party
answer to assert the affirmative defense that the settlement among
plaintiff, defendant-third-party plaintiff, and third-party defendant
Industrial Power & Lighting Corp. was not reasonable, and as modified
the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
personal injuries he allegedly sustained when a lift he was operating
fell into a hole at a construction site. Defendant-third-party
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                                                         CA 14-01220

plaintiff, Christa Construction, LLC (Christa), commenced a third-
party action against third-party defendants, Industrial Power &
Lighting Corp. (IPL) and Fisher Concrete, Inc. (Fisher). Supreme
Court granted plaintiff’s motion for summary judgment on, inter alia,
his Labor Law § 240 (1) claim but, on a prior appeal, this Court
concluded that there was a triable issue of fact whether plaintiff’s
actions were the sole proximate cause of his injuries and denied that
part of the motion (Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d
938, 939-940). Plaintiff, Christa, and IPL later settled the main
action and the third-party action with respect to IPL.

     Fisher made three separate motions seeking several different
forms of relief. In its first motion, Fisher sought partial summary
judgment dismissing IPL’s cross claims and summary judgment dismissing
Christa’s claims for contribution and indemnification. In its second
motion, Fisher moved for leave to serve a second amended answer to the
third-party complaint, seeking to assert several additional
affirmative defenses including the affirmative defense that the
settlement among plaintiff, Christa and IPL was not reasonable. In
its third motion, Fisher sought an order precluding Christa and IPL
from introducing testimony from an expert witness. In addition, IPL
moved for summary judgment dismissing Fisher’s cross claims against
it. The court granted that part of Fisher’s motion for partial
summary judgment seeking dismissal of Christa’s claim for
contribution, but denied the remainder of that motion. The court also
granted in part Fisher’s motion for leave to serve a second amended
third-party answer, but denied that part of the motion seeking to
assert the affirmative defense that the settlement among plaintiff,
Christa, and IPL was not reasonable. Furthermore, the court denied
without prejudice Fisher’s motion to preclude expert testimony.
Finally, the court granted IPL’s motion to dismiss Fisher’s cross
claims against IPL. Fisher now appeals.

     We note at the outset that we dismiss the appeal insofar as it
concerns Fisher’s motion to preclude. In that motion, Fisher sought
to preclude Christa and IPL from calling an expert to testify that
Fisher violated certain provisions of the Industrial Code, on the
ground that the Industrial Code provisions that formed the basis for
the expert’s testimony did not apply. Generally, an order denying a
motion in limine, even when “made in advance of trial on motion
papers[,] constitutes, at best, an advisory opinion which is neither
appealable as of right nor by permission” (Cotgreave v Public Adm’r of
Imperial County (Cal.), 91 AD2d 600, 601; see Winograd v Price, 21
AD3d 956, 956). “Inasmuch as those parts of the order herein merely
adjudicated the admissibility of evidence and do not affect a
substantial right, no appeal lies as of right from those parts of the
order” (Innovative Transmission & Engine Co., LLC v Massaro, 63 AD3d
1506, 1507 [internal quotation marks and brackets omitted]; see
Angelicola v Patrick Heating of Mohawk Val., Inc., 77 AD3d 1322,
1323).

     Fisher contends that the court abused its discretion in denying
that part of its motion seeking leave to assert in its second amended
third-party answer the affirmative defense that the settlement among
                                 -3-                            38
                                                         CA 14-01220

plaintiff, Christa, and IPL was not financially reasonable.   We agree,
and we therefore modify the order accordingly.

     “ ‘Generally, [l]eave to amend a pleading should be freely
granted in the absence of prejudice to the nonmoving party where the
amendment is not patently lacking in merit . . . , and the decision
whether to grant leave to amend . . . is committed to the sound
discretion of the court’ ” (Palaszynski v Mattice, 78 AD3d 1528, 1528;
see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d
957, 959). Pursuant to CPLR 3018 (b), a party must plead as an
affirmative defense “all matters which if not pleaded would be likely
to take the adverse party by surprise or would raise issues of fact
not appearing on the face of a prior pleading” (id.; see generally
Wooten v State of New York, 302 AD2d 70, 73, lv denied 1 NY3d 501).
Furthermore, “[w]henever a defendant feels the need to deny something
not mentioned in the complaint, the defendant should transform the
‘denial’ into an affirmative defense and plead it as such” (Patrick M.
Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B,
CPLR C3018:15, at 314). Consequently, we agree with Fisher that the
amendment at issue was proper because the settlement had not occurred
when the third-party complaint and Fisher’s initial and amended third-
party answers were served. Thus, the settlement could not have been
“mentioned in the complaint” (id.), nor could the affirmative defense
have been raised in the initial or amended third-party answers.

     Christa contends that the court properly denied the motion
seeking leave to amend because the proposed amendment is patently
without merit in light of “the general rule [] that the indemnitor
will be bound by any reasonable good faith settlement the indemnitee
might thereafter make” (Fidelity Natl. Tit. Ins. Co. of N.Y. v First
N.Y. Tit. & Abstract, 269 AD2d 560, 561 [internal quotation marks
omitted]; see Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d
1502, 1507; Goldmark Indus. v Tessoriere, 256 AD2d 306, 307). We
reject that contention. It is well settled that, “[w]here a party
voluntarily settles a claim, [the party] must demonstrate that [it]
was legally liable to the party whom [it] paid and that the amount of
[the] settlement was reasonable in order to recover against an
indemnitor” (HSBC Bank USA v Bond, Schoeneck & King, PLLC, 55 AD3d
1426, 1428 [internal quotation marks omitted]). Christa failed to
submit any evidence establishing that the settlement was reasonable
(cf. Nesterczuk v Goldin Mgmt., Inc., 77 AD3d 800, 804; Freehill v ITT
Sheraton Corp., 74 AD3d 876, 877; Fidelity Natl. Tit. Ins. Co. of
N.Y., 269 AD2d at 561-562), and we therefore conclude that the court
abused its discretion in determining that such general rule should
apply to bar Fisher’s proposed affirmative defense.

     Fisher’s contention that the court erred in granting IPL’s motion
for summary judgment dismissing Fisher’s cross claim for
indemnification against IPL, because Fisher is an intended third-party
beneficiary of the indemnification clause in the contract between
Christa and IPL, is without merit for the reasons stated in the
court’s bench decision. Fisher’s remaining contention was raised for
the first time in its reply papers, and it is “well settled that
contentions raised for the first time in reply papers are not properly
                                 -4-                            38
                                                         CA 14-01220

before [us]” (Jacobson v Leemilts Petroleum, Inc., 101 AD3d 1599,
1600; see Nick’s Garage, Inc. v Liberty Mut. Fire Ins. Co., 120 AD3d
967, 968).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
