| Rivera v New York City Tr. Auth. |
| 2016 NY Slip Op 05451 [141 AD3d 441] |
| July 7, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Salvatore Rivera, Respondent, v New York City Transit Authority et al., Appellants. |
Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset (Charles R. Strugatz of counsel), for appellants.
Pena & Kahn, PLLC, Bronx (Diane W. Bando of counsel), for respondent.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 17, 2015, which denied defendants' motion for a stay of trial, leave to conduct additional discovery, leave to amend the answer to add the affirmative defense of lack of capacity, and the appointment of a guardian ad litem for plaintiff, unanimously affirmed, without costs.
Defendants failed to present evidence that plaintiff was incapable of prosecuting or defending his rights in this action either upon its commencement or at this time (see Roach v Benjamin, 78 AD3d 468 [1st Dept 2010]; Nova v Jerome Cluster 3, LLC, 46 AD3d 292, 292 [1st Dept 2007]).
The proposed amendment adding a defense of lack of capacity is palpably insufficient as a matter of law (see Aerolineas Galapagos, S.A. v Sundowner Alexandria, LLC, 74 AD3d 652, 652 [1st Dept 2010]). "[A] person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any other person" (Bryant v Riddle, 259 AD2d 399, 399 [1st Dept 1999]).
In light of the foregoing, defendants' request for a stay is moot. Concur—Mazzarelli, J.P., Friedman, Andrias, Webber and Gesmer, JJ.