New York State Court of Claims

New York State Court of Claims

MOSLEY v. THE STATE OF NEW YORK, #2003-031-109, Claim No. 107378, Motion No. M-66914


Synopsis


Case Information

UID:
2003-031-109
Claimant(s):
ELTON MOSLEY
Claimant short name:
MOSLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107378
Motion number(s):
M-66914
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ELTON MOSLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read and considered by the Court on Claimant's motion to amend his claim:
1) Notice of Motion, filed June 4, 2003;
2) Claimant's Affidavit, sworn to May 29, 2003, with attached exhibit;
3) Affirmation of Thomas G. Ramsay, Esq., dated July 17, 2003;
4) Filed documents: Claim. By claim filed on February 24, 2003, Claimant commenced an action against the State alleging that he was injured on January 11, 2003, at Wyoming Correctional Facility, when he was kicked in the head and chest by an "overly aggressive" cow. Claimant alleged that Defendant was aware of this particular cow's aggressive tendencies and negligently failed to take proper safety precautions to prevent Claimant from being attacked.

With this motion, Claimant seeks to amend his claim by providing more detail regarding the nature and extent of his injuries and by increasing the ad damnum clause from $70,000.00 to $150,000.00. To paraphrase Claimant's motion papers, he alleges that he was not aware of the extent of his injuries at the time he filed his claim. He alleges that his injuries and, therefore, his damages, appear to be greater than he initially anticipated.

Defendant opposes the application, pointing out that Claimant has offered no "additional or subsequent transactions or occurrences" which would permit amendment of the claim pursuant to CPLR 3025(b). However, I find that Claimant's allegation that he has since learned that his vision is permanently impaired satisfies this requirement.

With regard to the requested increase of the ad damnum clause of the claim, CPLR 3025(b) states that leave to amend shall be freely granted. Such a motion 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]).
I find that Claimant has adequately demonstrated justification for the requested relief and that Defendant would not be prejudiced by permitting Claimant to amend his claim.

Accordingly, it is hereby

ORDERED, that Claimant's motion to amend his claim is hereby GRANTED. Claimant shall have sixty (60) days from service of a file-stamped copy of this order to serve and file a verified Amended Claim, in accordance with the Court of Claims Act and rules.

December 10, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims