New York State Court of Claims

New York State Court of Claims

PASTORELL v. THE STATE OF NEW YORK, #2005-009-006, Claim No. 106909, Motion No. M-69284


Synopsis


Claimant's motion for permission to amend his claim was denied.

Case Information

UID:
2005-009-006
Claimant(s):
DAVID J. PASTORELL
Claimant short name:
PASTORELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106909
Motion number(s):
M-69284
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SEIDENBERG and STRUNK
BY: Faith A. Seidenberg, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 15, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order permitting him to serve and file an amended claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit, Proposed Amended Claim, with Exhibits 1,2,3

Correspondence dated October 18, 2004 from Heather R. Rubinstein, Esq., Assistant Attorney General 4

Filed Papers: Claim

In his filed claim, claimant alleges that he suffered personal injuries when he fell from his top bunk bed at Watertown Correctional Facility on November 30, 2000. Claimant alleges that the State was negligent in failing to provide him with a safe, stationary, and proper method to access his top bunk.

In this motion, claimant now seeks to add a cause of action alleging that his Eighth Amendment rights under the United States Constitution were violated when claimant was denied surgery for his injuries for a period of approximately four years.

Pursuant to CPLR 3025(b), leave to amend pleadings should be freely given. In this particular matter, however, the law is well established that the Court of Claims does not have jurisdiction to hear and determine claims arising from an alleged violation of the United States Constitution (Brown v State of New York, 89 NY2d 172, at 184) and the State is not a person within the meaning of 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58).

Since this Court does not have jurisdiction to hear and determine the additional cause of action asserted in claimant's proposed claim, it would be futile to permit such an amendment.

Accordingly, it is

ORDERED, that Motion No. M-69284 is hereby DENIED.


February 15, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims