New York State Court of Claims

New York State Court of Claims

BASTIAN v. THE STATE OF NEW YORK, #2002-019-592, Claim No. 104744, Motion No. M-65982


Synopsis


Claimant's motion to amend claim is denied.

Case Information

UID:
2002-019-592
Claimant(s):
GEORGE F. BASTIAN, III
Claimant short name:
BASTIAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104744
Motion number(s):
M-65982
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
GEORGE F. BASTIAN, III, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 17, 2001.
  2. Verified Answer, filed September 12, 2001.
  3. "Addendum to Compliant [sic]", filed January 28, 2002.
  4. Notice of Motion No. M-65982, undated, filed October 28, 2002.
  5. Affidavit of George F. Bastian, III, in support of motion, sworn to August 8, 2002, with attachments.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated November 5, 2002, and filed November 7, 2002, with attached exhibits.
  7. "Rebuttal to Opposition Motion to Amend Claim", of George F. Bastian, III, sworn to November 8, 2002, and filed November 14, 2002.
  8. Letter from George F. Bastian, III, to Mr. David Klingaman, Chief Clerk, Court of Claims, dated November 6, 2002 and received November 12, 2002, with attachment.
This Claim was originally filed with the Clerk of the Court on August 17, 2001 alleging various acts of medical malpractice occurring between January 16, 2001 through August 2001 at Elmira Correctional Facility, including specific acts of continued medical malpractice on February 23, 2001 at Groveland Correctional Facility and on March 16, 2001 at Collins Correctional Facility. The State filed a Verified Answer on September 12, 2001. Claimant filed a "Supplemental Pleadings/Addendum to Complaint" with the Clerk of the Court on January 28, 2002 containing additional allegations of medical malpractice continuing through early 2002 relating to changed medications and dosages. All of these allegations relate to the treatment of Claimant's pre-existing medical conditions, most notably diabetes, but including hypertension and carpal tunnel syndrome as well.


By way of this motion, Claimant seeks to amend his Claim by adding the diagnosis of diabetic retinopathy as of April 20, 2002 at Wende Correctional Facility. Claimant also makes references to his first positive blood glucose levels in June 2002; a change in medication; a diagnosis that he no longer suffers from carpal tunnel syndrome; inadequate footwear and socks; and a request to raise his addendum to three million dollars.


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). However, in this Court's view, the proposed amended claim does not substantially alter or add to the original claim. All of the allegations contained in the proposed amendment are essentially a continuation or an update of Claimant's medical status and treatments since that time. Claimant's continuing displeasure or need to particularize perceived injustices is not a basis for allowing an amendment. In this Court's view, the proposed amendments are not substantive in nature nor do they alter the original Claim in any substantive manner. The proposed amendments, to the extent they can be characterized as such, are already within the purview of the original Claim. 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-65982, is DENIED.

December 9, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims