New York State Court of Claims

New York State Court of Claims

PAGANELLI v. THE STATE OF NEW YORK, #2002-009-54, Claim No. 106531, Motion Nos. M-65802, CM-65909


Synopsis


Defendant's motion to dismiss the claim for failure to state a cause of action was denied and claimant's cross-motion for permission to serve and file an amended claim was granted.

Case Information

UID:
2002-009-54
Claimant(s):
ROBERT PAGANELLI The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
PAGANELLI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106531
Motion number(s):
M-65802
Cross-motion number(s):
CM-65909
Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
ROVEGNO & TAYLOR, P.C.
BY: Robert P. Rovegno, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 18, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion (M-65802) seeking an order dismissing the claim for failure to state a cause of action. Claimant has responded with a cross-motion (CM-65909) seeking permission to serve and file a second amended claim.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits 1,2


Notice of Cross-Motion, Attorney's Affirmation, with Exhibits (CM-65909) 3,4

A claim seeking damages for personal injuries sustained by claimant and alleging negligence against the State was served upon the Attorney General on or about August 7, 2002 (see Exhibit A to Items 1,2). This claim was filed with the Clerk of the Court of Claims on August 21, 2002. Thereafter, claimant served an amended claim upon the Attorney General on or about August 29, 2002, which amended claim was filed with the Clerk of the Court of Claims on the same day (see Exhibit B to Items 1,2). Even though both the claim and amended claim assert that claimant was injured as a result of negligence by the State, neither document states in any manner how claimant was injured.

In response to the State's motion to dismiss, claimant seeks permission to serve and file a second amended claim, and he has included this proposed second amended claim with his moving papers (see Exhibit B to Items 3,4). In paragraph 2 of this proposed second amended claim, claimant alleges that "[t]he State was negligent in that its employee failed to properly maintain and control the motor vehicle causing the motor vehicle to become involved in a motor vehicle accident with a second vehicle at said intersection causing personal injuries to the Claimant."

The Court finds that this language, taken in conjunction with the other allegations set forth in claimant's proposed second amended claim, satisfies the minimal pleading requirements for a claim set forth in Court of Claims Act, § 11.

Leave to amend pleadings should be "freely given" pursuant to CPLR Rule 3025(b). Since claimant has now set forth a specific allegation against the State in his proposed second amended claim, the Court in its discretion hereby grants claimant permission to serve and file such second amended claim.

Accordingly, it is

ORDERED, that Motion No. M-65802 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-65909 is hereby GRANTED; and it is further

ORDERED, that claimant is hereby directed to serve his "second amended claim" (set forth as Exhibit B to Items 3, 4) by regular mail upon the Attorney General, and to file such "second amended claim" with the Clerk of the Court of Claims, within 45 days from the filing date of this decision and order.


November 18, 2002
Syracuse, New York

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