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
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
; Anderson v Carney
, 161 AD2d 1002
(3d Dept 1990)
. 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
, at 1003; §203(e) Civil Practice Law
In the Second Department, however, a loss of consortium claim may not be
related back once the statute of limitations has expired. Lucido v
, 251 AD2d 383 (2d Dept 1998)
Clausell v Ullman
, 141 AD2d 690 (2d Dept
; Keith v Schulman
, 177 Misc 2d
422 (Kings Co Sup Ct 1998), affd
, 265 AD2d 380 (2d Dept
. At least one other Department shares
this view. See, e.g.
, Kettle v Sweet Home Central School
, 152 AD2d 956 (4th Dept 1989)
, Costello v Amtrak
, 1996 WL 480815
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.