New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2005-019-548, Claim No. 109707, Motion No. M-69978


Synopsis


Claimant's motion to amend his claim is granted in part and denied in part.

Case Information

UID:
2005-019-548
Claimant(s):
FRANCISCO RAMOS
Claimant short name:
RAMOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109707
Motion number(s):
M-69978
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
FRANCISCO RAMOS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 6, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for an order to amend his claim pursuant to CPLR 3025 (b). The State of New York (hereinafter "State") opposes the motion.

This claim was filed with the Clerk of the Court on August 9, 2004. The State filed a verified answer on August 16, 2004. The claim alleges that a notice of intention was served on March 1, 2004 (Claim, ¶ 6), although the State disputes this date and indicates that it received the notice of intention on June 14, 2004. (Affirmation of Joseph F. Romani, AAG, ¶ 6; State's Exhibit B).


The original claim contains two causes of action. The first cause of action alleges a bailment claim that arose between December 24, 2003 through December 30, 2003 at Southport Correctional Facility (hereinafter "Southport"). Claimant's second cause of action alleges that he was assaulted by correction officers at Southport on December 30, 2003. Claimant's proposed third cause of action is stated in terms of medical negligence based upon allegations that correction officers ignored his pleas for sick call the night of the alleged attack and left him lying on the floor of his prison cell in obvious physical distress. ("First Amended Claim For Damages" [hereinafter "Proposed Amended Claim"], ¶ 53). Claimant's proposed fourth cause of action alleges medical malpractice for inadequate treatment and diagnose of his injuries to his left foot and ankle resulting from the assault, more specifically relating to the medical examinations performed by Dr. Alves on December 31, 2003 and March 12, 2004. (Proposed Amended Claim, ¶ 46; Notice of Intention attached as State's Exhibit B, ¶ ¶ 2-7). By way of this motion, claimant seeks to amend his original claim by expanding the factual allegations pertaining to the two original causes of action (bailment and assault), as well as by adding the third and fourth proposed causes of action.


It is well-settled that "[p]rovided that there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit, leave to amend pleadings under CPLR 3025 (b) should be freely granted [citation omitted]." (State of New York v Ladd's Gas Sta., 198 AD2d 654, 654; CPLR 3025 [b]). The motion is directed to the sound discretion of the court. (Murray v City of New York, 43 NY2d 400, 404-405, rearg dismissed, 45 NY2d 966).


The State objects to claimant's attempts to expand his first cause of action which asserts a bailment claim. The State questions the proper accrual dates and whether claimant pursued any administrative remedies as required by CCA 10 (9). That having been said, however, the court notes that the State's verified answer does not contain any jurisdictional defenses. CCA 11 (c) dictates that any jurisdictional defense is waived unless raised, with particularity, in the responsive pleading. As such, the State waived the defense of untimeliness by failing to raise the same in its verified answer. Consequently, the court finds no prejudice to the State in allowing claimant to expand the factual allegations pertaining to his first cause of action sounding in bailment.


The State also objects to claimant's request to expand the factual allegations regarding his second cause of action which alleges he was assaulted by correction officers at Southport on December 30, 2003. More specifically, the State argues this cause of action is untimely because claimant has not established that he timely served his notice of intention.[1] Again, however, the court notes that the State's verified answer does not contain any jurisdictional defense and, as such, the State waived such defense by failing to raise the same, with particularity, in the responsive pleading. (CCA 11 [c]). Consequently, the court finds no prejudice to the State in allowing claimant to expand the factual allegations pertaining to his second cause of action alleging assault.

With respect to the two new proposed causes of action, it is well-settled that amendments may not be used to remedy a jurisdictional defect. (Grande v State of New York, 160 Misc 2d 383, 385; Ferrer v State of New York, 172 Misc 2d 1, 7). Moreover, "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." (CPLR 203 [f]).


Here, although the notice of intention alludes to inadequate medical treatment it was not served on the State until June 14, 2004 and, as such, was untimely with respect to a medical malpractice/negligence cause of action that accrued, at the latest, on March 12, 2004.[2] The original claim that was apparently served on July 15, 2004 and filed on August 9, 2004 did not contain any references to medical negligence or medical malpractice causes of action. In fact, claimant states that he purposefully did not originally include these medical claims because he wanted to see how his treatment progressed. (Claimant's Memorandum of Law, p 3). Now, claimant seeks to amend his claim with the medical negligence and medical malpractice causes of action. However, claimant's proposed amendments regarding medical negligence and medical malpractice involving medical personnel cannot relate back to the original claim and thus take advantage of its timeliness, because the original causes of action (bailment and assault) did not provide any notice of the transactions or occurrences giving rise to the medical causes of action now sought to be interposed. (Clark v Foley, 240 AD2d 458, lv dismissed 91 NY2d 921). Consequently, the proposed amendment including medical negligence and medical malpractice against the medical personnel at Southport cannot be allowed because it sets forth new causes of actions which are untimely in their own right and unrelated to the bailment and assault causes of action involving the correctional officers at Southport contained in the original claim. (Barnes v State of New York, Ct Cl, April 28, 2000, Lane, J., Claim No. 98858, Motion No. M-61199 [UID No. 2000-012-508]).[3]


Parenthetically, the court notes that claimant may not be without a remedy with respect to his proposed third and fourth causes of action, however, as he appears to be within the time allowed to submit a motion for permission to file and serve a late claim pursuant to CCA 10 (6) upon proper papers.[4]


In view of the foregoing, it is ORDERED, that claimant's motion to amend his claim, Motion No. M-69978, is GRANTED IN PART with respect to permitting claimant to expand the allegations regarding the first (bailment) and second (assault) causes of action; and DENIED IN PART with respect to adding a proposed third (medical negligence) and fourth (medical malpractice) cause of action. The proposed amended claim shall be revised to omit the proposed third and fourth causes of action. Claimant shall file an amended claim with the Clerk of the Court and shall serve a copy of said amended claim upon the office of the Attorney General by regular mail within sixty (60) days of the filing of this Decision and Order with the Clerk of the Court.



July 6, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The court has considered the following papers in connection with this motion:

  1. Claim, filed August 9, 2004.
  2. Verified Answer, filed August 16, 2004.
  3. Notice of Motion No. M-69978, undated, and filed March 25, 2005.
  4. Affidavit of Francisco Ramos, in support of motion, sworn to March 2, 2005.
  5. "First Amended Claim For Damages", sworn to February 28, 2005.
  6. "Claimant's Memorandum of Law in Support of Motion To Amend Claim", undated.
  7. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated April 26, 2005, and filed April 28, 2005, with attached exhibits.
  8. "Surreply [sic] Affidavit In Support of Motion to Amend Claim", of Francisco Ramos, in support of motion, sworn to June 27, 2005, and unfiled, with attachments.


[1]The State alleges it received only one notice of intention on June 14, 2004 which would be more than 90 days after accrual of this cause of action.
[2]Assuming, arguendo, the medical claims accrued, at the latest, on March 12, 2004, then claimant's ninety day time period within which to serve a notice of intention expired on June 10, 2004.
[3]Selected unreported decisions from the Court of Claims are available via the Internet at
[4]The court notes that it is well-settled that an application for permission to file a late claim sounding in medical malpractice generally requires support in the form of an expert's affidavit of merit. (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550, 551-552).