New York State Court of Claims

New York State Court of Claims

BORGES v. THE STATE OF NEW YORK, #2002-019-538, Claim No. 99651, Motion No. M-65217


Claimant's motion to amend claim is denied as unnecessary.

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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
June 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves to amend this Claim pursuant to CPLR 3025. The State of New York (hereinafter "State") opposes the motion. This matter is scheduled for trial on June 25, 2002, at Elmira Correctional Facility.

The Court has considered the following papers in connection with this motion:'
  1. Claim, filed January 19, 1999.
  2. Notice of Motion No. M-65217, dated May 9, 2002, and filed May 15, 2002.
  3. Affidavit of Domingo Borges, in support of motion, sworn to April 29, 2002, with attached exhibits.
  4. Proposed Amended Claim.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated May 31, 2002, and filed June 3, 2002, with attached exhibits.
Claimant originally filed this claim on January 19, 1999, alleging negligence and medical malpractice arising from a tooth extraction that occurred on August 26, 1996 during his incarceration at Southport Correctional Facility. According to the Claim, Claimant had a wisdom tooth extracted on August 26, 1996, but continued to suffer swelling and pain thereafter. Upon a followup visit, Claimant was assured the healing process would take some time. On August 19, 1998, Claimant was seen at Strong Memorial Hospital at which time he was advised that he had a cyst inside his gum at the point of his prior tooth extraction and that oral surgery was required, although he never underwent surgery to remove the cyst. On November 30, 1998, Claimant was examined and x-rayed at Attica Correctional Facility at which time it was discovered that a metal foreign object was imbedded in his gum. Claimant alleges that the foreign object is a broken drill bit from his August 26, 1996 tooth extraction.

The Claim asserts theories of liability based upon negligence and medical/dental malpractice and seeks damages for mental distress and anguish, physical pain and suffering and "[f]or future operation to remove foreign metal object, for future pain and suffering, and mental distress and anguish associated therewith." (Claim, ¶ 9).

By way of this motion, Claimant seeks to amend his Claim by adding the following: a specific reference to the date of the previously described "future operation" to remove the foreign metal object, namely September 30, 1999; to correct the date of his initial hospitalization; to provide more precise factual and legal allegations; to allege separate causes of action and statements of fact; and to provide a more accurate list of the statutes, rules, regulations, etc. that were allegedly violated by the State. In opposition, the State asserts that this proposed amendment relating to the subsequent surgery is now time barred and could have been previously raised.

According to CPLR 3025 (b), leave to amend should be freely given in the absence of surprise or prejudice resulting from the delay. (Esposito v Billings, 103 AD2d 956, 957). In this Court's view, the proposed amended claim does not substantially alter or add to the original claim. For instance, although the actual date of the subsequent surgery is provided in the proposed amended claim, the need for such additional surgery to remove the foreign object was specifically mentioned in the original Claim as quoted hereinabove. Furthermore, this additional surgery was the subject of at least three prior motions before the Hon. Philip J. Patti including a Motion to Preserve Evidence (Borges v State of New York, Ct Cl, July 7, 1999, Patti, J., Claim No. 99651, Motion No. M-59355); a Motion seeking an Order to Produce the metal fragment after surgery (Borges v State of New York, Ct Cl, September 13, 2000, Patti, J., Claim No. 99651, Motion No. M-61682; and a Motion to Strike the State's Answer due to spoliation of evidence (Borges v State of New York, Ct Cl, January 12, 2001, Patti, J., Claim No. 99651, Motion No. M-62439). As such, the State cannot claim surprise or prejudice from its inclusion now. That having been said, however, the proposed amendments are not substantive in nature nor do they alter the original Claim in any substantive manner. The proposed amendments are already within the purview of the original Claim and the subject of the forthcoming trial. Consequently, Claimant's motion for leave to amend is deemed unnecessary and will be denied. (Player v State of New York, Ct Cl, August 8, 2001, McNamara, J., Claim No. 103265, Motion No. M-63344).

Accordingly, in view of the foregoing, Claimant's Motion to Amend, Motion No. M-65217, is DENIED. The trial scheduled for June 25, 2002 at Elmira Correctional Facility will proceed as scheduled.

June 6, 2002
Binghamton, New York

Judge of the Court of Claims