New York State Court of Claims

New York State Court of Claims

KIRKPATRICK v. THE STATE OF NEW YORK, #2002-031-069, Claim No. 102395, Motion Nos. M-65861, CM-65966


Claimant's motion to supplement his claim is granted and Defendant's cross-motion for summary judgment is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Claimant for an order permitting him to supplement his claim and on cross-motion by Defendant for summary judgment:
1. Claimant's Notice of Motion, filed September 16, 2002;
2. Claimant's affidavit, sworn to September 5, 2002, with attached exhibits;
3. Affidavit in Opposition and Cross-motion of Wendy E. Morcio, Esq., sworn to October 17, 2002, with attached exhibits. In this matter, I must address motions from both Claimant and Defendant. Claimant's motion, though not specifically identifying the relief requested, is apparently a motion for permission to supplement his claim, as defined by CPLR 3025. Defendant's motion seeks summary judgment relating to Claimant's alleged failure to file a timely claim.

In his underlying action, Mr. Kirkpatrick alleges that he was denied proper medical treatment while at Wende Correctional Facility ("Wende"). This neglect allegedly started on March 14, 1999, and continued until Claimant filed his claim on May 2, 2000. With this motion, Claimant apparently seeks to update his claim by alleging that he continued to suffer damages from the time he filed his claim until a point in time when he was transferred from Wende to Attica Correctional Facility ("Attica"). Claimant does not identify when this transfer occurred. I can only ascertain that it was sometime after the claim was filed.

Defendant, apparently interpreting the claim in this matter to allege only a specific occurrence of dental malpractice (the inappropriate removal of all of Claimant's teeth) on March 14, 1999, brings its cross-motion for summary judgment. The cross-motion is based upon the jurisdictional defense that Claimant failed to serve either a notice of intention to file a claim, or serve and file a claim within 90 days of March 14, 1999. I do not fault Defendant's interpretation, as the claim is far from clear and concise. However, I find that Claimant does not allege that all of his teeth were removed on March 14, 1999. Rather, he alleges that the treatment he believes he needed was refused him at that time, and this refusal to treat him properly continued until his transfer to Attica. Claimant asserts that the proper course of dental treatment he needed did not require the removal of all of his teeth. For this reason, he refused on March 14, 1999, and on dates thereafter, to permit the dentist that treated him at Wende to remove all of his teeth. He goes on to allege that this dentist became so upset with him that the dentist refused to see or treat Claimant further.

As the Claim in this matter is from a pro se inmate, it should be construed liberally, viewing the allegations of the claim in the light most favorable to the Claimant (Schleifman v Prime Hospitality Corp., 246 AD2d 789). I find that the claim alleges that his improper care and the resulting damages continued to the point in time when he filed his claim. Taking these allegations as true, as I must on an application for summary judgment, it can not be said that the claim is untimely. For this reason, Defendant's motion for summary judgment must be denied.

It appears Claimant's motion is more a response to discovery amplifying his claim and less an application for permission to amend his claim. Claimant merely informs Defendant that his period of pain and suffering ended when he received the treatment he sought after his transfer to Attica. Though Claimant does not assert a new cause of action and no new theory of liability, he does add information that was not contained in the original claim. I find therefore, that Claimant's application is one for permission to supplement his claim pursuant to CPLR 3025. The information Claimant seeks to add is so thoroughly consistent to the assertions found in his claim that one could argue that permission to supplement is not necessary. At the very least, it can not be said that the new allegations surprise or prejudice Defendant in any way. As leave to amend or supplement pleadings should be freely granted absent prejudice or surprise (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755), I find that Claimant's motion should be granted.

Based upon the papers submitted with these motions, it is

ORDERED, that Claimant's motion for permission to supplement his claim is granted. Claimant shall serve and file his supplemental claim within sixty (60) days of the filed stamped date of this order, and it is further

ORDERED, that Defendant's cross-motion for summary judgment is denied.

December 20, 2002
Rochester, New York

Judge of the Court of Claims