New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2000-012-508, Claim No. 098858, Motion No. M-61199


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John P. Lane
Claimant's attorney:
Jessie J. Barnes, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Reynolds E. Hahn, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's application to amend the claim:

Notice of Motion, Affidavit, Proposed Amended
Claim, and attachments 1

Opposing Affirmation of Reynolds E.
Hahn, Esq., dated March 7, 2000 2

Defendant's Letter in Opposition dated
March 7, 2000 3

Claimant's Reply Letter dated March 12, 2000 4

Order, Motion No. M-58915, Cross-Motion No.
CM-59022, filed May 13, 1999 5

Claim 6

The claim in this action, which was filed on August 25, 1998, sets forth several causes of action, all of which accrued between April 12, 1998 and June 11, 1998. On a prior motion, this Court dismissed all portions of the claim except those dealing with allegations of assault and battery, said to have occurred on April 18, 1998 and May 17, 1998, and of destruction of personal property, said to have occurred on June 11, 1998 (Order, Motion No. M-58915, Cross-Motion No. CM-59022, filed May 13, 1999).

By the instant motion, claimant seeks permission to amend his claim to restate the allegations of assault and battery and destruction of personal property, to remove allegations for the causes of action that were previously dismissed, and to "join" a cause of action for "medical malpractice allegedly committed in the delayed treatment of claimant's hemorrhoid condition," delay which is said to have extended from April 24, 1998 to December 22, 1998 (affidavit of J. Barnes, ¶¶ 6,11). None of the causes of action previously dismissed by this Court related in any way to treatment or non-treatment of this medical condition.

In opposition to the motion, counsel for defendant has accurately pointed out that any undue delay on the State's part ended, and thus the action for medical malpractice accrued, at the latest, by December 22, 1998, more than a year before the instant motion was filed. Counsel argues that the cause of action which claimant seeks to "join" to his existing claim is therefore time-barred, since no notice of intention or claim was served and no claim was filed or served within 90 days after that claim accrued, as required by section 10(3) of the Court of Claims Act.

Claimant's proposed amendment cannot "relate back" to the original claim, and thus take advantage of its timeliness, because the original claim did not provide notice of the transactions or occurrences giving rise to the cause of action that is now sought to be interposed. Leylegian v Federal Paper Bd. Co., 251 AD2d 60; Clark v Foley, 240 AD2d 458; Siegel, Practice Commentaries, McKinney's Consol Laws of NY, Book 7A, CPLR 3025, C3025:11. Consequently, the amendment cannot be allowed because it sets forth a new cause of action that is both untimely in its own right and entirely unrelated to subject matter of the original claim. Sabini v Artandi, 202 AD2d, 568; Karczewski v Sharpe, 260 AD2d 606.

Claimant's motion is denied.


April 28, 2000
Buffalo, New York

Judge of the Court of Claims