New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2002-031-024, Claim No. 100753, Motion No. M-64723


Synopsis


Claimant's motion to amend the ad damnum clause of his claim is granted.

Case Information

UID:
2002-031-024
Claimant(s):
JESSIE BARNES
Claimant short name:
BARNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100753
Motion number(s):
M-64723
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JESSIE BARNES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, New York State Attorney GeneralBY: GREGORY P. MILLER, ESQ., Asst. Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on Claimant's motion to amend the ad damnum clause of his claim:
  1. Notice of Motion, filed February 13, 2002;
  2. Claimant's Supporting Affidavit, sworn to February 1, 2002, with attached exhibits;
  3. Affidavit of Gregory P. Miller, Esq., sworn to March 1, 2002.
Claimant seeks to amend his claim by increasing the ad damnum clause from $84,000.00 to $100,000.00. To paraphrase Claimant's motion papers, he alleges that he has deteriorated both mentally and physically since his claim was originally filed and that his damages appear to be greater than he anticipated.

Defendant opposes the application, correctly stating that Claimant's motion was not accompanied by a physician's affidavit (see, Brennan v City of New York, 99 AD2d 445).

CPLR 3025(b) states that leave to amend shall be freely granted. Such a motion to amend the ad damnum clause is directed to the sound discretion of the Court, based upon the consideration of various factors including:
[t]he facts on which the additional sum is based, the reason why that sum was not sought at the outset, a strong affidavit of merit, and an assurance to the court that the application is being made promptly upon the uncovering of the new facts (Siegel, NY Prac § 237, at 381 [3rd ed]).
Here, despite the shortcomings of Claimant's application, I find that his position as an inmate in the care and custody of the State inhibits his ability to acquire a physician's affidavit to support his motion. Also I find that the Defendant would not be prejudiced by permitting the relatively modest increase in the ad damnum clause from $84,000.00 to $100,000.00.

Accordingly, Claimant's motion is hereby GRANTED and the claim shall be deemed amended to reflect $100,000.00 in the ad damnum clause.

June 21, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims