In Whalen v. Kawasaki Motors Corp., 92 NY2d 288 (1998), the plaintiff brought an action against manufacturer Kowasaki Motors and retailer Robinson Cycle for personal injuries sustained in an accident. Plaintiff settled with Kowasaki on the eve of trial and continued to try the case against Robinson. As part of the settlement, plaintiff agreed to withdraw all claims against Robinson which were derivative of Kowasaki's liability and proceeded against Robinson on the theory of its direct liability. After a verdict was returned finding him 8% at fault, Robinson moved to amend his Answer to add GOL 15-108 as an Affirmative Defense. The Appellate Division in Whalen stated that "Robinson's proposed amendment may not be considered late; it closely followed the settlement and plaintiff's purported oral amendment of the complaint. In any event, even late pleading of the statute would not have prejudiced or surprised plaintiff because it was plaintiff's negotiation of the settlement that invoked the statute." 242 A.D.2d 919, 662 N.Y.S.2d 339 (1st Dept. 1997). The Court of Appeals in Whalen affirmed the Appellate Division stating that "(u)nder the CPLR's liberal pleadings practice, a party may amend its pleadings to raise General Obligations Law 15-108 as a defense at any time, even after trial, provided that the late amendment does not prejudice the other party. 92 NY2d at 293. T he Court noted that "(p)rejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment." 92 NY2d at 293. Addressing the issue of prejudice and noting that the plaintiff stipulated it would not attribute any blame to Kawasaki, the Court of Appeals held that there was no prejudice to granting the amendment after the verdict as plaintiff had irretrievably set his course in the litigation and in the trial of the matter and could not have sought any apportionment of fault against Kawasaki even if the defense had been raised before the trial. Thus the Court of Appeals affirmed the appellate court's conclusion that the request to amend the Answer to add GOL 15-108 should have been allowed.