New York State Court of Claims

New York State Court of Claims

BRAHINSKY v. THE STATE OF NEW YORK, #2002-016-069, Claim No. 102555, Motion Nos. M - 64576, CM - 64834


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M - 64576
Cross-motion number(s):
CM - 64834
Claimant's attorney:
Sherman & Basichas, LLCBy: Alisa Lebensohn, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, AAG
Third-party defendant's attorney:

Signature date:
June 28, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 v Surles, 239 AD2d 115, 657 NYS2d 549 (1st Dept 1997)[1], affirming on the reasoning of Judge Lebedeff's unpublished July 3, 1995 Order in Supreme Court, New York County. While Carlon and Siegel 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.
In view of the above, having considered the submissions of the parties,[2] IT IS ORDERED that defendant's Motion (M - 64576) to amend its answer be granted; IT IS FURTHER ORDERED that claimant's Cross-Motion (CM - 64834) be denied, except that claimant shall be allowed an extension of time to file her note of issue, such new date to be set at a conference scheduled by the Court.

June 28, 2002
New York, New York

Judge of the Court of Claims

[1] Siegel v Surles, app dismissed 90 NY2d 934, 664 NYS2d 271 (1997), lv denied 91 NY2d 804 , 668 NYS2d 559 (1997).

[2] From the defendant: Notice of Motion and Affirmation in Support together with exhibits A though F; Affirmation in Opposition to Cross-Motion. From the claimant: Notice of Cross-Motion, Affirmation in Opposition to Defendant's Motion and in Support of [Claimant's] Cross Motion together with exhibits A though F.