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.