New York State Court of Claims

New York State Court of Claims

IORIO v. THE STATE OF NEW YORK, #2006-009-048, Claim No. 110578, Motion Nos. M-71264, M-71737


Claimant’s motions to dismiss all of the affirmative defenses set forth in the defendant’s amended answer and for permission to serve an amended claim were both denied as unnecessary.

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):
M-71264, M-71737
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought two separate motions with respect to this claim. In Motion No. M-71264, claimant seeks an order dismissing all of the affirmative defenses set forth in defendant’s amended verified answer. In Motion No. M-71737, claimant seeks an order granting him permission to serve an amended claim. For purposes of judicial economy, these two motions will be considered herein.

The following papers were considered by the Court in connection with these motions:
“Notice of Motion to Dismiss Defense” (M-71264), Affidavit in Support 1,2

Affirmation in Opposition (M-71264), with Exhibits 3

“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 left eye.

By a Decision and Order dated July 27, 2005[1], 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 further

ORDERED, that Motion No. M-71264 is hereby DENIED, as moot; and it is further

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.

October 23, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Iorio v State of New York, Ct Cl, July 27, 2005, Midey, J., Claim No. 110578, Motion No. M-70237, filed August 8, 2005.