New York State Court of Claims

New York State Court of Claims

VILLAGE OF SARANAC LAKE v. THE STATE OF NEW YORK, #2002-032-025, Claim No. 103732, Motion No. M-66075


Claimant's motion to amend the claim to add a necessary party and to increase the ad damnum clause is granted.

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:
James M. Brooks, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
January 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is an action for indemnification commenced by the Village of Saranac Lake, Inc. as the result of a judgment that was entered against it in a civil action commenced in Supreme Court. That action was brought by an individual who was injured when she stepped near an ornamental, star-shaped garden in the Village's Veterans Park.

The garden in question had been designed and installed by inmates of Adirondack Correctional Facility, in Raybrook, New York, as part of the prison's occupational training program. On July 4, 1995, after the garden was in place, Rose Johnson was injured when she stepped into what she described as a ditch or hole bordering the garden. Mrs. Johnson and her husband commenced an action against the Village in Supreme Court, Franklin County. In that action, the Village was represented by an attorney retained by the New York Municipal Insurance Reciprocal (NYMIR), which had issued a commercial property and general insurance liability policy on behalf of the Village (Brooks affidavit, Exhibit 9).

The Johnsons were successful in that action and a judgment in the amount of $168,742.80 was issued on November 15, 1999 (id, Exhibit 12). The Village then appealed, and the judgment was affirmed on January 11, 2001 (Johnson v Village of Saranac Lake, Inc., 279 AD2d 784). NYMIR then paid to the Johnsons the sum of $175,012.11, representing the original judgment amount plus $250.00 court costs awarded by the Appellate Division and accumulated interest. The day following payment, the instant claim was commenced.

The claim originally filed in this Court named the Village of Saranac Lake, Inc. as the sole claimant and sought recovery in the total amount of $191,002.14 (original judgment of $168,742.80 plus attorneys' fees of $22,259.34). By this motion, counsel for claimant seeks to add NYMIR, the entity that actually made payment on behalf of the Village, as a named claimant and to increase the ad damnum clause to include the following items:
Original judgment $168,742.80
Appellate Division court costs $250.00
Accumulated interest $6,019.31

Legal fees in Supreme Court action
up to October 27, 1999 $22,259.34

Legal fees in Supreme Court action
after October 27, 1999 $2,269.27
Legal fees related to appeal $21,175.98
Expenses of appeal $ 4,379.38

Counsel for defendant has indicated that the State raises no objection to this motion.

Leave to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]). Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that 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 (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Gonfiantini v Zino, 184 AD2d 368, 370; Harding v Filancia, 144 AD2d 538, 539; White v State of New York, 161 Misc 2d 938). Consideration of those factors in the instant case, together with the lack of opposition from defendant, support granting the requested relief.

Claimant's submissions on the motion, while voluminous, do not contain a proposed amended claim. Because the amendment will alter both the caption of the action and the amount of damages, as well as the items of damage for which compensation is sought, it is claimant's responsibility to provide a corrected pleading.

Claimant's motion is granted on the condition that an amended claim, which incorporates the changes set forth above and no others, is filed and served, in accordance with the requirements of Court of Claims Act §11(a), within thirty days after the date that this decision and order is file-stamped. The State's answer to the original claim shall be deemed the answer to the amended claim so filed.

January 21, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for permission to amend the claim in this action:
  1. Notice of Motion and Supporting Affidavit of James M. Brooks, Esq., with annexed Exhibits and Memorandum of Law.
  2. Letter of no opposition of Michael W. Friedman, Esq., AAG
Filed papers: Claim; Answer