New York State Court of Claims

New York State Court of Claims

FRANCIS v. New York, #2000-014-508, Claim No. 97100, Motion Nos. M-61363, CM-61478


Synopsis


In a claim alleging medical malpractice, claimants' motion to amend the claim to increase the amount of damages sought from $10 million to $50 million, where no change in the injuries is alleged, and there has been no demonstration of prejudice to the defendant, is granted. The defendant's unopposed cross motion to dismiss the claim against Wendy Smith, individually, on the ground that it was served and filed more than four years after its accrual, is granted.

Case Information

UID:
2000-014-508
Claimant(s):
JARRET FRANCIS, an infant under the age of 14 years, by his parent and natural guardian WENDY SMITH and WENDY SMITH, individually
Claimant short name:
FRANCIS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97100
Motion number(s):
M-61363
Cross-motion number(s):
CM-61478
Judge:
S. Michael Nadel
Claimant's attorney:
The Law Offices of Henry R. SimonBy: Joy Y. Frank
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Diane G. Temkin, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on the claimants' motion to amend the claim to increase the amount of damages sought, and on the defendant's motion to dismiss the individual claim of Wendy Smith: Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of Cross Motion, Affirmation in Opposition and in Support; Reply Affirmation and Exhibits annexed; Sur-Reply.


The claimants move to amend the claim to increase the amount of damages sought from $10 million to $50 million, based upon the preparation in November 1999 of a "life care plan" (annexed to claimants' Reply as Exhibit A) which calculates the cost of providing care to the infant claimant during his lifetime, in excess of $10 million. In this claim for medical malpractice, it appears that the claimants intend to prove that the infant claimant will require total care for the rest of his life.

The defendant opposes the motion on the ground that the claimant has not provided necessary medical support (see, Dolan v. Garden City Union Free School District, 113 AD2d 781), and that the defendant will be prejudiced in preparing for trial, which is scheduled to commence on June 19, 2000.

The cases cited by the defendant involve situations where the increase in the amount of damages is based upon a change in the injuries alleged to have been sustained. Dolan v. Garden City Union Free School District, supra [change in condition, injuries not considered previously, or extent to which condition has become aggravated]; Barsoum v Wilson, 255 AD2d 537 [recently-discovered injuries]; Lopez v Alexander, 251 AD2d 297 [increased injuries]. In such circumstances, permission to amend the claim requires a demonstration by the claimant of the existence and extent of the change in injuries as well as a causal relationship to the negligence alleged, and that the nature of the change will not prejudice the defendant's ability to defend at trial.

Here, however, it is not suggested by the claimants that there has been any change in the injuries alleged to have been sustained, which were set forth in the claimants' Bill of Particulars, including the assertion that the infant claimant "will always require constant assistance and supervision of all daily needs." Paragraph 9, Claimants' Bill of Particulars. The only basis for denial of the claimant's application, therefore, would be a demonstration by the defendant that it would be prejudiced in its ability to defend at trial. Hillenbrand v 3801 Review Place, Inc., 72 AD2d 554 [update of injuries; actual prejudice at trial]; Kushner v Queens Transit Corp., 97 AD2d 432 [re-evaluation of original injuries; actual prejudice]; Cardone v University Hospital, 78 AD2d 645 [update and re-evaluation of the original injuries; actual prejudice at trial].

The defendant has failed to demonstrate any actual prejudice which would result from an amendment of the claim to increase the amount of damages sought. It is not suggested by the defendant that proof of damages in the increased amount will not be relevant at trial. Indeed, in a Sur-Reply, the Assistant Attorney General suggests that the motion be denied, but with leave to reargue it during or after trial.

Under the circumstances, the claimants' motion is granted. The claimant shall serve and file an amended claim, in the form annexed as Exhibit D to the Notice of Motion, within 20 days of receipt of a filed copy of this Order.

The claimants have not opposed the defendant's cross motion to dismiss the individual claim of Wendy Smith, on the ground that it was served and filed more than four years after its accrual. Nor have the claimants opposed the defendant's cross motion to amend the caption of the claim, to reflect that only the State of New York is a proper defendant in this claim. The cross motion is granted. The individual claim of Wendy Smith is dismissed; the caption has been amended to reflect that only the State of New York is the defendant.



April 26, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims