New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2005-028-500, Claim No. 107016, Motion Nos. M-69243, CM-69591


Synopsis



Case Information

UID:
2005-028-500
Claimant(s):
TAWANA SCOTT
Claimant short name:
SCOTT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107016
Motion number(s):
M-69243
Cross-motion number(s):
CM-69591
Judge:
RICHARD E. SISE
Claimant's attorney:
KELNER & KELNER, ESQS.BY: Ronald C. Burke, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: John J. KelleyAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In reaching its decision, the Court has read and considered the following papers:

(1) Notice of Motion to Amend the Answer dated October 14, 2004 and filed October 15, 2004;

(2) Affirmation in Support of John J. Kelley, Assistant Attorney General dated October 14, 2004 and filed October 15, 2004, together with Exhibits A-D (Kelley Affirmation);


(3) Notice of Cross-Motion dated October 29, 2004 and filed November 1, 2004[1];

(4) Affirmation of Ronald C. Burke, Esq., dated October 29, 2004 and filed November 1, 2004 together with Exhibits A-G (Burke Affirmation).

In the present Motion, the Defendant State of New York, moves to amend its Answer to include the affirmative defense of Statute of Limitations. The Claimant in its cross-motion, opposes the application, arguing that the Defendant's application lacks merit (Burke Affirmation ¶¶ 4-6). Orally, the Claimant's attorney also noted that no physician's affirmation was submitted to substantiate the State's position that the Claimant could have discovered the foreign object at an earlier date.

Although courts today are more prone to investigate the merits of a proposed amendment (see generally East Asiatic Co. v Corash, 34 AD2d 432 (1st Dept 1970), they only require that there be enough evidence to show that there is a prima facie basis for the defense. Here the Court finds that the papers submitted by the Defendant have produced that quantum of proof. The testimony of the Claimant during her examination before trial indicates that she had suffered pain and yet sought no treatment – instead leaving her fate to the will of God.

The cases relied upon by the Claimant do not substantiate the argument suggested by her attorney that the affirmation of a doctor is required in order to establish a meritorious defense.

The Claimant's argument that another hospitalization had not found the offending pad is post hoc, propter hoc reasoning, and has been rejected by the Court.

Based upon the evidence submitted and the failure of the Claimant to submit any proof – or even allege – prejudice, the application sought in the motion is granted and the cross-motion denied.

The State shall file an amended answer.

January 4, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Two of the three branches of the claimant's cross-motion have been disposed of – only the opposition to the motion remains for consideration.