New York State Court of Claims

New York State Court of Claims

KUNTZSCH v. STATE OF NEW YORK, #2002-018-156, Claim No. 104687, Motion No. M-64999


Synopsis


Claimants have not adequately supported their request for an increased to their ad damnum clause. Motion is denied without prejudice.

Case Information

UID:
2002-018-156
Claimant(s):
GORDON M. KUNTZSCH and TRACY KUNTZSCH
Claimant short name:
KUNTZSCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104687
Motion number(s):
M-64999
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ABDELLA LAW FIRMBy: Robert Abdella, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimants make a motion purusuant to CPLR 3025(b) to amend the ad damnum clause of their claim for the personal injuries of claimant, Gordon M. Kuntzsch from $200,000 to $500,000. Defendant opposes the motion.

The claim arises from injuries claimant, Gordon Kuntzsch, allegedly sustained on June 23, 2001, when he was driving his motorcycle on Moyer Street in the Village of Canajoharie and lost control, allegedly as the result of defendant leaving the roadway with loose blacktop. (Claim ¶3-5) The claim further asserts that there were no warning signs of this hazardous condition.

(Claim ¶5) According to the claim, claimant, Gordon Kuntzsch, suffered injury to his right hand, shoulder and knee, bruises, abrasions, shock and trauma. (Claim ¶7)
Leave to amend pleadings shall be freely given within the discretion of the trial court absent prejudice to the opposing party. (CPLR 3025(b);
Edenwald Contracting Co. Inc. v City of New York, 60 NY2d 957). Yet where the request to increase the ad damnum clause is the result of new or aggravated injuries, the claimant must come forward with some medical proof substantiating "the nature, severity and cause" of the injuries. (Parsons v Borden, Inc., 273 AD2d 749, 750; Henderson v United Parcel Serv., 245 AD2d 789).
In this case, claimant has submitted only the affidavit of his counsel, which states that "[i]t has become clear, through further discovery proceedings and further discussion with the plaintffs, that the damages that they suffered are in excess of that indicated in their original claim, to wit; $251,200.00." ( Abdella Affirmation, ¶5) There is no substantiation of the excess damages that they suffered. In fact, there is no indication in the affirmation as to the amount of additional damages they seek, the amended claim submitted with the motion reflects an increase of $300,000 for claimant, Gordon M. Kuntzsch's personal injuries. Claimants have not adequately supported their request for an increase to their ad damnum clause. (
Henderson v United Parcel Serv., supra at 791)
Accordingly claimants' motion is DENIED without prejudice.

July 22, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following in deciding this motion:


Notice of Motion..........................................................................................................1


Supporting affirmation of Robert Abdella, Esquire,....................................................2


Affirmation in opposition of Joel L. Marmelstein, Esquire, Assistant

Attorney General ..............................................................................................3


Proposed Amended Claim.............................................................................................4