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.