New York State Court of Claims

New York State Court of Claims

LAVERTY v. THE STATE OF NEW YORK, #2005-033-114, Claim No. 107842, Motion No. M-69509


Synopsis



Case Information

UID:
2005-033-114
Claimant(s):
FRANCIS LAVERTY and HELEN LAVERTY
Claimant short name:
LAVERTY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107842
Motion number(s):
M-69509
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Taub & Marder, Esqs.By: Renee R. Jamal, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by the State of New York (hereinafter "State") to amend its bill of particulars in response to claimant's demand for a verified bill of particulars[1].

On June 28 and 29, 2002, Francis Laverty (hereinafter "claimant") was at the State University Hospital at Stony Brook. Claimant alleges that he was not monitored as he was supposed to be and that this failure to monitor him, allowed claimant to wander in the hospital, fall and break his hip. The parties have been actively engaged in discovery and the trial is scheduled for May 9, 2005 through May 13, 2005.[2]

On or about November 5, 2003, defendant answered claimant's demand for a verified bill of particulars. In this response, defendant stated that claimant's culpable conduct consisted of failing to advise defendant of claimant's condition in a timely manner. Defendant reserved its right to supplement the response (see Waldman v Allen, 87 AD2d 817). Prior to trial, defendant seeks the Court's permission to amend its response to include specific admissions by claimant Helen Laverty in failing to advise defendant's doctors as to claimant's physical condition.

CPLR 3025(b) says that a party may amend its pleading at any time with leave of the court and that leave shall be freely given. The Court sees no prejudice that inures to claimant by allowing defendant to amend the response to the demand for a verified bill of particulars. The amendment adds nothing new to the response. It only offers a particular instance of claimant's failure to apprise the doctors of claimant's condition. Claimant's position has always been that any information from the claimants to the doctors was irrelevant; simply observing claimant upon presentation to defendant's hospital, with nothing more, should have alerted defendant to restrain claimant.

Based on the foregoing, defendant's motion to amend the response to the demand for a verified bill of particulars is granted.


March 28, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on defendant's motion: Notice of Motion dated December 23, 2004 and filed December 29, 2004; Affirmation of Ross N. Herman, AAG in Support of Defendant's Motion for Leave to Amend its Verified Bill of Particulars as to Affirmative Defenses with annexed Exhibits A-F dated December 23, 2004 and filed December 29, 2004; Affirmation in Opposition of Renee R. Jamal, Esq. with annexed Exhibits A-E dated January 13, 2005 and filed January 18, 2005; Reply Affirmation of Ross N. Herman, AAG in Support of Defendant's Motion for Leave to Amend its Verified Bill of Particulars as to Affirmative Defenses with annexed Exhibits 1-5 dated January 21, 2005 and filed January 26, 2005.
[2]The trial was originally scheduled for February 2005 but was rescheduled due to the pendency of this motion.