“Notice of Motion for Leave to Amend Amended Claim” (M-71737),
Affidavit in Support, with Exhibits 4, 5
Affirmation in Opposition (M-71737), with Exhibit 6
Claimant initially filed this claim with the Clerk of the Court of Claims on
February 28, 2005. In this claim, claimant seeks damages for personal injuries
based upon allegations of medical malpractice and negligence following surgery
on his eyes, performed March 22, 2004 at Upstate Medical University Hospital.
Claimant alleges that following this procedure, he became nearly blind in his
By a Decision and Order dated July 27, 2005
this Court granted claimant’s motion in which he sought permission to
increase the ad damnum
clause in this claim from $75,000.00 to
$300,000.00. This was the only relief requested by claimant in that motion.
Subsequently, claimant filed with the Clerk of the Court of Claims an amended
claim on November 29, 2005, another amended claim on December 6, 2005, and a
third amended claim on January 24, 2006, all in apparent attempts to comply with
this Court’s Decision and Order. Defendant served an amended verified
answer dated January 9, 2006, containing 12 affirmative defenses, to one of
these amended claims.
In the Decision and Order permitting claimant to increase the amount set forth
in his ad damnum clause, this Court did not require or direct claimant to
serve and file an amended claim. Accordingly, there was no need for claimant to
serve and file any amended claim in response to this Court’s Decision and
Order. In other words, claimant’s request to increase his ad damnum
clause to $300,000.00, previously granted, does not require any further
action by claimant. As can best be determined, claimant’s present motion
(M-71737) is a further attempt on the part of claimant to comply with this
Court’s prior Decision and Order. Based on the foregoing, however, his
request for permission to serve and file an amended claim is unnecessary.
Additionally, since this Court has not previously authorized the service and
filing of any amended claim, the three amended claims filed by claimant, without
such authorization, are all hereby considered by this Court to be nullities. It
thus follows that the amended verified answer filed by defendant and is
similarly determined to be a nullity. As a result, consideration of
claimant’s motion (M-71264) seeking an order dismissing each and every
affirmative defense asserted by the defendant in this amended verified answer
would simply be an academic exercise, an endeavor which will not be undertaken
by this Court.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-71737 is hereby DENIED, as unnecessary; and it is
ORDERED, that Motion No. M-71264 is hereby DENIED, as moot; and it is
ORDERED, that the Clerk of the Court is hereby directed to strike the three
amended claims filed by claimant on November 29, 2005, December 6, 2005, and
January 24, 2006, as well as defendant’s amended verified answer, filed
January 11, 2006, as these amended pleadings were not, and have not been,
authorized by this Court.