New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2005-030-524, Claim No. 109518, Motion No. M-69506


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 18, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 7 were read and considered on the Claimant's motion for permission to serve and file a late claim, brought pursuant to Court of Claims Act §10(6), and to amend his claim:
1-4 Notice of Motion, Affidavit in Support of Motion to Ammend[1] Claim (sic) by Angel Hernandez, Claimant; Motion for Permission to File a Late Claim; Affidavit in Support of Motion to File Late Claim and attachments, including a document entitled Claim, dated May 17, 2004 and Amended Claim, dated May 17, 2004

  1. Affirmation by Dewey Lee, Assistant Attorney General
6-7 Filed Papers: Claim Number 109518, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

A voluminous set of papers has been filed in connection with this motion, which appears to be a motion for permission to serve and file a late claim alleging that claimant slipped and fell on ice accumulations present due to Defendant's negligence, coupled with an additional application to amend the claim to include medical negligence as well. A "Claim" and an "Amended Claim," both dated May 17, 2004, are appended to the moving papers.

In the Claim, Claimant alleges that on or about January 6, 2003 he slipped and fell on an icy stairwell at Downstate Correctional Facility (hereafter Downstate), that the Defendant had a "duty . . . to provide medical care following accepted professional standards", and that his damages for pain and suffering are in the amount of $500,000.00. He does not indicate with any more specificity that he was injured. He alleges that he served a Notice of Intention to file a claim upon the Attorney General "in April of 2003."

In the Amended Claim, he also indicates that he fell on an icy stairwell on January 6, 2003. He makes reference to Defendant's ". . . knowledge on or about October 8, 2002 when they had me attend Roentologic, that I had mild Degenerative Spondylosis at C4 and C5 levels and loss of Cervical Cordosis . . . ", for which he continues to receive medication. [Amended Claim, ¶ 2]. He appears to be saying that he was not given informed consent concerning the medication prescribed, but this is not clearly stated. [ibid. ¶3]. He asks for damages for pain and suffering in the amount of $1,000,000.00.

After reviewing the Clerk's file for Claim Number 109518, the same document entitled "Claim" appended to these moving papers was filed with the Clerk under that number on June 22, 2004. An Affidavit of Service indicates that it was served upon the Attorney General by certified mail, return receipt requested, on or about May 17, 2004. A Verified Answer was filed on July 26, 2004, asserting the defense that the claim was not timely served. The claim does not appear to have been dismissed - although it appears to be subject to dismissal upon the appropriate motion by the Defendant - but at this juncture it has not been dismissed. Accordingly, the Court will treat the present motion as one to amend the already filed pleading, rather than a motion for permission to serve and file a late claim, which is premature.

Defendant's Affirmation only addresses the putative motion for permission to serve and file a late claim, and is of little assistance here.

A pleading in the Court of Claims may be amended in accordance with the provisions of Civil Practice Law and Rules § 3025(b). See 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency. A copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that ". . . unequivocally make out a prima facie basis for the claim . . . or other matter now sought to be added . . . " [Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:11; Civil Practice Law and Rules § 3025].

It should go without saying however, that what amendment is sought should be clear on the face of the proposed pleading. In his Affidavit in Support of his motion to amend, Claimant indicates - again somewhat elliptically - that he is concerned about the side effects of medication prescribed for his various medical conditions, and alludes to "[t]he failure of the defendant to inform the claimant of any known or suspected or anticipated side affects/or any possible detrimental future consequences of said usage." [Affidavit in Support of Motion to Amend Claim, ¶2]. Is he then saying that when he "was sent to Roentgenologic on the 7 day of January, 2003 . . . [ibid. ¶5; also Amended Claim, ¶¶ 2-4], the medication caused him to fall, and/or that he learned that there were consequences to taking the medication that caused him some other unspecified harm? It is unclear in the Affidavits appended, the Claim itself, and the proposed Amended Claim, exactly what the Claimant seeks by way of redress. The Court should not have to engage in guesswork to try to ascertain what a pleading intends to express.

Accordingly, Claimant's combined motion to amend his claim and for late claim relief [M-69506], is in all respects denied.

April 18, 2005
White Plains, New York

Judge of the Court of Claims

[1] Where reference is made herein to the words "Ammend" or "Ammended", as set forth in Claimant's papers, the spelling has been hereafter corrected to say "Amend" or "Amended".