New York State Court of Claims

New York State Court of Claims

PARKS v. STATE OF NEW YORK, #2003-018-225, Claim No. 102591, Motion No. M-66599


Synopsis


Claimant's motion to amend ad damnum clause granted.

Case Information

UID:
2003-018-225
Claimant(s):
SHEILA PARKS, as Parent and Natural Guardian of ZEBULON PARKS The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
PARKS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102591
Motion number(s):
M-66599
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DelDUCHETTO & POTTERBy: Thomas J. Potter, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant makes a motion pursuant to CPLR 3025(c) to amend the ad damnum clause of the claim for the injuries suffered by the infant Zebulon Parks from One Million Dollars to Five Million Dollars. Defendant has not responded to the motion. (
ÿ this)
A three-day trial was held on this claim in May 2002. Claimant in her closing statement after trial to the Court seeks $4.5 million dollars. The damage clause in the claim seeks only one million dollars. Without an amendment to the ad damnum clause of the claim, the Court is restrained to the amount of damages sought in the ad damnum clause (
Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18; Scorza v New York State Thruway Authority, 274 AD2d 463, 464). The Court has not issued its decision yet.
Before or after judgment leave to amend pleadings shall be freely given within the discretion of the trial court upon such terms as may be just absent prejudice to the opposing party (CPLR 3025(c);
Loomis v Civetta Corinno Constr. Corp., 54 NY2d at 23; Murray v City of New York, 43 NY2d 400, 404-405). Prejudice does not result from merely the exposure of the defendant to greater liability, but instead involves limiting the defendant's ability to prepare its case or eliminating an opportunity it could have had to support its position (Loomis v Civetta Corinno Constr. Corp., 54 NY2d at 23). In this case, there is no prejudice to the defendant, and none has been asserted.
Accordingly claimant's motion is GRANTED. Claimant is directed to file and serve defendant with a copy of the amended pleading increasing the ad damnum clause from One Million Dollars to Five Million Dollars within twenty days of service of a filed copy of this decision and order.

June 4, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affidavit of Thomas J. Potter, Esquire, in support..............................................2

There was no opposition received from the defendant.