The underlying claim in this matter was brought on behalf of Krayna Brahinsky,
who was injured in a fall on November 10, 1997 at the Manhattan Psychiatric
Center, where she was a patient. By this motion, defendant seeks permission,
pursuant to Mental Hygiene Law §43.03, to amend its answer by adding a
counterclaim for services rendered to Ms. Brahinsky at the Center (def affirm,
exh F). A bill has been submitted for services from January 1, 1993 through
November 9, 1997 totally $1,246,186, based upon a daily rate that varied from
$261.77 to $835.44 (def exh C). For its part, claimant opposes such amendment as
prejudicial and, on its merits, unconstitutional. Claimant cross moves: i) to
strike defendant's answer for failure to comply with my Preliminary Conference
Order, dated March 21, 2001 (cl affirm, exh D), and ii) in the alternative,
requesting an order directing a witness to appear for a deposition and granting
an extension of time for filing the note of issue, the date for which had been
November 29, 2001.
Leave to amend shall be freely given if the opposing party is not prejudiced.
Prejudice does not mean that the amount of damages by claimant will be reduced
or limited; instead, there must be some indication that claimant has been
hindered in preparing her case or has been prevented thereby from taking some
measure in support of her position. CPLR 3025(b); Loomis v Civetta Corinno
Construction Corp., 54 NY2d 18, 23, 444 NYS2d 571 (1981), rearg
denied 55 NY2d 801, 447 NYS2d 436 (1981).
To the extent that merit is a factor in granting leave to amend, defendant
satisfies same. See Carlon v Regan
, 98 AD2d 544, 471 NYS2d 896 (3d Dept
1984), affd as modified
63 NY2d 1011, 484 NYS2d 506 (1984); and Siegel
, 239 AD2d 115, 657 NYS2d 549 (1st Dept
, affirming on the reasoning of Judge
Lebedeff's unpublished July 3, 1995 Order in Supreme Court, New York County.
upheld the right of the State to seek
payment by way of offset for such services provided by the Department of Mental
Hygiene, claimant will be afforded ample opportunity to challenge such proposed
action. See, for example, Brown v Stone
, 66 F Supp 2d 412 (EDNY 1999),
which ruled that the procedure constituted an improper contingent counterclaim.
As to compliance, or lack thereof, with the March 21, 2001 Preliminary
Conference Order, the issue will be dealt with at a conference Chambers will
schedule upon the filing of this Decision and Order. A new date for the note of
issue will be set at such time.