New York State Court of Claims

New York State Court of Claims

STOCKHOLM v. THE STATE OF NEW YORK, #2002-009-50, Claim No. 95825, Motion No. M-65742


Synopsis


Claimant's motion for permission to increase the ad damnum clause in the claim was granted.

Case Information

UID:
2002-009-50
Claimant(s):
CHERYL STOCKHOLM
Claimant short name:
STOCKHOLM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95825
Motion number(s):
M-65742
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
HINMAN, HOWARD & KATTELL, LLP
BY: James L. Chivers, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 29, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking to increase the ad damnum clause in her claim from one million, five hundred thousand dollars ($1,500,000.00) to four million five hundred thousand dollars ($4,500,000.00).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of James L. Chivers, Esq., with Exhibits 1,2

Affirmation of Christopher Gharibo, M.D., with Exhibits, Affidavit of Daniel A. McGowan, Ph.D., with Exhibit, Affidavit of Cheryl Stockholm 3,4,5

Memorandum of Facts and Law 6


Affirmation in Opposition, with Exhibit 7


Reply Affidavit, with Exhibit 8


Reply Memorandum of Law 9

In this claim, claimant seeks to recover damages arising from medical malpractice and negligent medical care involving several procedures for the surgical insertion and subsequent surgical removal of a spinal cord stimulator at the State University of New York Health Science Center, Syracuse, New York.

Following a bifurcated trial on liability, this Court, in a Decision dated September 26, 2001, found the State fully liable to claimant for medical malpractice. Subsequently, this Court then scheduled a trial limited to the issue of damages to commence on September 9, 2002.

After the trial was scheduled, claimant was apparently examined by her experts (Dr. Kenneth W. Reagles and Christopher G. Gharibo, M.D.). A Life Care Plan was prepared by Dr. Reagles and submitted to Daniel A. McGowan, who calculated the costs of this plan over claimant's life expectancy. The projected future costs of the Life Care Plan as calculated by Dr. McGowan, exceeded the amount originally sought in this claim, and therefore claimant's counsel advised State's counsel that an application would be made to increase the ad damnum clause.

The matter was then conferenced with Chambers, at which time State's counsel advised the Court that he would need substantial time to adequately prepare the State's defense, based upon the significant and unanticipated issues and costs contained in claimant's supplemental disclosures. Defendant's counsel also advised the Court that it would be necessary for the State to retain its own experts to respond to this disclosure. Defendant also requested an additional deposition of the claimant, as well as an interview of claimant by the State's vocational rehabilitation expert.

Based upon the concerns raised at this conference, this Court, by letter dated August 13, 2002, adjourned the damages trial until such time as all of the additional discovery was completed. To date, a new date for the trial on damages has not yet been scheduled by this Court.

With regards to the instant application, it is well settled that pursuant to CPLR Rule 3025(b), leave to amend pleadings shall be freely given. Furthermore, a motion to increase the ad damnum clause, whether made before or after trial, should generally be granted if there is no prejudice to the defendant (Loomis v Civetta Corinno Construction Corp., 54 NY2d 18, rearg denied 55 NY2d 801). In this particular claim, the damages trial has been adjourned by the Court, without date, in order to ensure that defendant be given a full and fair opportunity to review the supplemental disclosure provided by claimant, to complete additional discovery (including a supplemental deposition of claimant), and to give defendant's experts ample time to prepare their own reports for trial. It is the opinion of this Court that any potential prejudice to the defendant in the defense of this claim has been eliminated by the adjournment of the damages trial.

Furthermore, and although it is stating the obvious, regardless of the amount claimed, claimant still has the burden to establish her entitlement to these damages at trial.

For all of the above reasons, it is hereby

ORDERED, that Motion No. M-65742 is hereby GRANTED; and it is further

ORDERED, that claimant's application to increase the ad damnum clause of Claim No. 95825 to four million, five hundred thousand dollars ($4,500,000.00) is hereby granted.


October 29, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims