New York State Court of Claims

New York State Court of Claims

FAKHOURI v. THE STATE OF NEW YORK, #2002-030-535, Claim No. 104659, Motion No. M-65531


Claimant's motion for leave to serve an amended claim pursuant to CPLR §3025 (b) denied. Statute of limitations with respect to proposed loss of consortium claim expired; relation back doctrine does not apply

Case Information

MAURICE FAKHOURI Caption has been amended to reflect the proper spelling of Claimant's name as per affidavit of Claimant sworn to on 7/8/02.
Claimant short name:
Footnote (claimant name) :
Caption has been amended to reflect the proper spelling of Claimant's name as per affidavit of Claimant sworn to on 7/8/02.
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:
Third-party defendant's attorney:

Signature date:
September 11, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read on Claimant's motion for leave to serve and file an amended claim pursuant to §3025(b) Civil Practice Law and Rules:
  1. Notice of Motion, Affidavit of Maurice Fakhouri and accompanying exhibits.
  2. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General.
  3. Affidavit of Diala Fakhouri; Reply Affirmation of Michael J. O'Connor, Esq.
4,5 Filed Papers: Claim, Answer


According to his Claim, on July 30, 1999 Claimant was injured in an automobile accident on Route 55 in the Town of La Grange, County of Dutchess and State of New York. [Exhibit "A", Claim No. 104659 ¶4]. A notice of intention to file the claim had apparently been served upon the Attorney General on October 14, 1999. An affirmation of service by Claimant's attorney indicates that the Claim was served upon the State of New York on July 27, 2001 and, according to the Clerk's acknowledgment letter, filed with the Court of Claims on July 30, 2001. There is no indication in the Claim that Claimant was married at the time of the accident or that he had any other dependents.

In support of the present motion, Claimant states that "I did not tell my attorney at the time of the commencement of this claim that I was married at the time of the accident." [Claimant's Affidavit in Support, sworn to July 8, 2002, ¶4]. He further states that at the time of the accident, his "...wife was pregnant with our first child. She gave birth on February 26, 2000. I was unable to give my wife the full physical, emotional and financial support which she needed and deserved during her pregnancy, childbirth and post partum time because of my limitations imposed by the accident...." [Id, ¶ 5]. In reply papers Claimant has furnished an affidavit from his wife, indicating that she "...join[s] in this motion to amend this claim so as to include me as a claimant, asserting a derivative cause of action for my injuries occasioned by my husband's motor vehicle accident."[Affidavit of Diala Fakhouri, sworn to August 19, 2002, ¶1].

The proposed amended claim adds a second cause of action incorporating the factual allegations of the first cause of action, and adding the allegations that Diala Fakhouri and the Claimant were married, and the general loss of consortium claim.


A pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) Civil Practice Law and Rules. See, 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency.

It has been generally accepted that a court "...should pass upon the proposed pleading's merit before granting leave to amend so as to promote judicial economy and avoid wasteful motion practice....(citations omitted)." Washington Avenue Associates, Inc. v Euclid Equipment, Inc., 229 AD2d 486, 487-488 (2d Dept 1996).

A copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that "...unequivocally make out a prima facie basis for the claim...or other matter sought to be added...." [Commentary C3025:11; § 3025 Civil Practice Law and Rules].

Some courts have found that because a spouse's derivative claim arises from the same events and may be premised on the same injuries, amendment of a pleading to add the claim is permissible absent a showing of prejudice. See, e.g., Clark v Globe Business Furniture Inc., 237 AD2d 846, 848 (3d Dept 1997)[1]; Anderson v Carney, 161 AD2d 1002 (3d Dept 1990)[2]. Amendment to add the spouse's claim has been allowed despite the expiration of the statute of limitations vis-a-vis the spouse because of the "relation back" doctrine. See, Anderson v Carney, supra, at 1003; §203(e) Civil Practice Law and Rules.

In the Second Department, however, a loss of consortium claim may not be related back once the statute of limitations has expired. Lucido v Vitolo, 251 AD2d 383 (2d Dept 1998)[3]; Clausell v Ullman, 141 AD2d 690 (2d Dept 1988)[4]; Keith v Schulman, 177 Misc 2d 422 (Kings Co Sup Ct 1998), affd, 265 AD2d 380 (2d Dept 1999)[5]. At least one other Department shares this view. See, e.g., Kettle v Sweet Home Central School District, 152 AD2d 956 (4th Dept 1989)[6]; But, c.f., Costello v Amtrak, 1996 WL 480815 (EDNY).[7]

In the Court of Claims, amendment was allowed recently to add the derivative, and untimely, claim of a parent for personal injuries - as well as to amend the allegations of negligence to include more specificity. See, Bucchan/Mitchell v State of New York, Claim No. 105241, Midey, Jr., J. , signed May 22, 2002. There, however, the parent's existence was apparent in the pleadings already served and filed, and the Claimant made an appropriate motion with supporting argument with respect to the mother's untimely claim. See, Court of Claims Act §10(6).

In connection with a motion to dismiss, it has been held that a loss of services claim brought on a surviving spouse's behalf individually was untimely when it was not filed within ninety (90) days of decedent's death, even though the claim as decedent's representative for decedent's wrongful death was timely filed within one year of his death. Pelnick v State of New York, 141 Misc 2d 542 (Ct Cl 1988), mod on oth grds, 171 AD2d 734 (2d Dept 1991). As noted therein, a loss of services claim is derivative, "...separate and distinct from the action for personal injuries...(citation omitted)." Id, at 546. Indeed, a spouse with a derivative claim "...cannot take advantage of his wife's excuse for failing to file a timely claim....(citation omitted)." Rios v State of New York, 67 AD2d 744 (3d Dept 1979).

It is noted that in almost every case the fact that a spouse existed at all was a matter of either direct record or somehow otherwise implied.


In this case, almost three years after Ms. Fakhouri's claim accrued, Claimant seeks to add her derivative claim to his own. There has certainly been no notice to the State of the existence of this claim. Even Claimant's attorney did not know that Claimant was married at the time of the accident. Though a copy has not been furnished to the Court, it would be consistent with the factual posture here that the notice of intention did not contain any mention of Claimant's wife either.

Were this Court to treat this application as one for late claim relief pursuant to Court of Claims Act §10(6) no arguments have been advanced with respect to the statutory factors contained therein except to recite them in Counsel's reply affirmation, leaving little to consider.

The Court adheres to the rulings of the Second Department finding that the relation back doctrine should not apply to allow amendment to a pleading that would include a cause of action barred by the applicable statute of limitations. Accordingly, the Court hereby exercises its discretion and denies the Claimant's motion to amend the present claim to include a separate - and untimely - claim for loss of services by Claimant's spouse.

September 11, 2002
White Plains, New York

Judge of the Court of Claims

[1] Plaintiff in products liability action allowed to add wife's derivative claim; no showing of prejudice; "...insofar as it arises from the same events and is premised on the same injuries for which recovery was originally sought...."
[2] Trial court did not abuse discretion in allowing Plaintiff in personal injury action to amend complaint to add spouse's derivative cause of action for loss of services after statute of limitations had run ; no prejudice. Dissent said no notice, and impermissible encroachment upon legislative function: "...plaintiff seeks to add not only an additional party, but also a new and distinct cause of action of which the pleadings failed to give any notice (see, CPLR 203[e])." Anderson v Carney, supra, at 1004.
[3] In personal injury action, Supreme Court properly denied Plaintiff's motion for leave to amend complaint to add time-barred loss of services claim; "...the original complaint gave the defendant no notice that Plaintiffs would assert a cause of action to recover damages for loss of services ."
[4] In medical malpractice action spouse "possessed" the time-barred claim at inception, no notice to defendants in prior pleadings that loss of services claim would be asserted; can't relate back.
[5] In medical malpractice action, spouse's time-barred derivative claim cannot be deemed to relate back.
[6] In personal injury claim Plaintiff could not amend claim 3 and ½ years later to include wife's derivative claim; the notice of claim against the school included derivative claim.
[7] Applying New York Law in personal injury action, and federal relation back rule, spouse's derivative claim would lie since Amtrak couldn't reasonably claim - in the Court's view - that the handwritten pro se pleading would be the "...definitive statement of all the claims asserted."