New York State Court of Claims

New York State Court of Claims

BERRY v. THE STATE OF NEW YORK, #2003-031-052, Claim No. 107454, Motion No. M-66737


Synopsis


Claimant's motion for permission to file a late claim or amend his claim is denied as unnecessary. Amended claim served within time to do so without leave of Court. Clerk directed to file amended claim as of filing date of motion.

Case Information

UID:
2003-031-052
Claimant(s):
JOSEPH BERRY
Claimant short name:
BERRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107454
Motion number(s):
M-66737
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JOSEPH BERRY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, New York State Attorney GeneralBY: REYNOLDS E. HAHN, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 28, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant:
1. Claimant's Notice of Motion, filed April 28, 2003;
2. Claimant's Affidavit, sworn to April 23, 2003, with attached exhibits;
3. Affirmation in Opposition of Reynolds E. Hahn, Esq., dated May 16, 2003;
4. Filed documents: Claim and Answer. Claimant brings this motion, purportedly seeking permission to file a late claim. However, as Claimant's supporting papers make clear, the relief he is actually seeking is permission to file an amended claim. Claimant filed his initial claim in this matter on March 11, 2003. In that document, Claimant alleges medical malpractice and medical negligence relating to treatment he has received at Wyoming Correctional Facility from approximately September 27, 2001 to date. His supporting papers include an amended claim which sets forth the same causes of action relating to the same underlying events. He has merely set forth his allegations in a somewhat more specific manner.

Defendant, in opposing Claimant's application, correctly points out that Claimant's motion is unnecessary as his amended claim, though attached to his motion papers, was served and filed within 20 days of the service date of Defendant's answer. CPLR § 3025(a) provides:
"A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it."
For this reason, Claimant's service of his amended claim was timely and permissible without leave of court and the necessity of this motion.

Therefore, it is hereby,

ORDERED, that Claimant's motion for permission to file a late claim, or amend his claim, is denied as unnecessary. The Clerk is directed to file Claimant's amended claim, attached as Exhibit 2 to his motion papers, nunc pro tunc, as of the date of the filing of Claimant's motion. Defendant shall have 40 days from the filed date of this order to serve and file an answer to the amended claim.

July 28, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims