New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, et. al., #2001-011-561, Claim No. 103547, Motion No. M-63201


Synopsis


Claimant's request for leave to amend the claim is granted.

Case Information

UID:
2001-011-561
Claimant(s):
RONALD F. KELLY, 99 A 5425
Claimant short name:
KELLY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, COUNTY OF ALBANY, NEW YORK STATE DEPARTMENT OF CORRECTIONS, GLENN S. GOORD, ROY A. GIRDICH, TOM FLYNN, NURSE, CABON, and NURSE, CHESTNUT
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103547
Motion number(s):
M-63201
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Ronald F. Kelly, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael W. Friedman, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
July 18, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved pursuant to CPLR 3025 for leave to amend the claim which arises froman incident in which the top bunk on which Claimant was laying collapsed.

Defendant has submitted a letter, in response to a notice from the clerk of the court regarding the scheduling of the motion, in which the attorney for Defendant asserts that it has not received any motion papers from Ronald Kelly. The letter is dated March 19, 2001. However, Claimant has submitted a letter dated March 26, 2001 in which he acknowledges problems with the initial service of the motion and indicates that the motion papers have now been sent to Defendant. No response to that letter has been submitted by Defendant. Inasmuch as the letter indicates that the motion was served more than thirteen days before the April 18, 2001 return date, the motion is properly before the court (CPLR 2214; CPLR 2103[b]).

Leave to amend a pleading should be freely given in the absence of prejudice or surprise resulting directly from the delay (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755).

The proposed amendments serve generally to amplify the original claim and do not effect substantive changes which might lead to prejudice or surprise. The application to amend should therefore, be granted with the exception of the change in the caption. Based upon the facts alleged, the State of New York is the only proper defendant in this action.

The motion for leave to amend the claim is granted and Claimant is directed to serve the amended claim upon Defendant by regular mail within thirty days of service upon him of a file- stamped copy of this order. The caption of the amended claim should name only the State of New York as a defendant.


July 18, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated March 6, 2001
  2. Unsworn Affidavit in Support not dated
  3. Letter of Michael W. Friedman, Esq., dated March 19, 2001
  4. Letter of Ronald F. Kelly dated March 20, 2001 with attachment
  5. Letter of Ronald F. Kelly dated March 26, 2001 with attachment