New York State Court of Claims

New York State Court of Claims

CALDWELL v. THE STATE OF NEW YORK, #2006-032-010, Claim No. 110294, Motion Nos. M-70338, M-70339


Case Information

SUSANNAH CALDWELL, a person under disability, JUDITH BURG and STEVEN CALDWELL, both individually as parents and as co-guardians for SUSANNAH CALDWELL
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-70338, M-70339
Cross-motion number(s):

Claimant's attorney:
James W. Badie, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, New York State Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move this Court for an order pursuant to CPLR 3025, granting leave to amend

the claim to allege two causes of action previously dismissed by the Court. By separate motion, claimants also move to change venue of the claim from the Albany District to the White Plains District. The surrounding circumstances are as follows.

On December 28, 2003, while participating in a ski program at Whiteface Mountain, claimant Susannah Caldwell fell and broke her arm. In July 2004, claimants moved for leave to file a late claim. The "proposed claim" submitted in support of the motion was styled more as a notice of intention, and alleged only that Susannah was injured while participating in the ski program. The "proposed claim" did not allege any individual causes of action for Susannah's parents, claimants Judith Burg and Steven Caldwell. Thereafter, the Court granted claimants permission to file a late claim.

Claimants filed a claim in January 2005, seeking damages for Susannah as a result of negligence (first cause of action), damages for claimant Judith Burg for emotional distress (second cause of action) and loss of society and companionship (third cause of action). After defendant answered the claim, it moved to dismiss the claim in its entirety. Defendant argued, inter alia, that the second and third causes of action were not contained in the "proposed claim" and, thus, the Court did not grant permission for late filing as to these two causes of action. The Court agreed and dismissed these causes of action. In so doing, the Court noted that it did not make any determination as to whether an application for leave to amend and for late claim relief would be meritorious. Claimants now move for leave to amend the claim to add these causes of action.

In support of their motion, claimants argue that leave to amend pleadings should be freely given absent prejudice or unfair surprise. Claimants further argue that the causes of action that they seek to add are inextricably interwoven to the pending claim and, therefore, no prejudice or unfair surprise inures to defendant. In opposition, defendant counters that claimants failed to attach the proposed amendment, or an affidavit of merit by a person with knowledge, in support of the amendment and, in any event, the proposed causes of action lack merit.

Initially, the Court is unpersuaded that the amendment should be denied because claimants failed to append it to their moving papers. Claimants' submissions reflect that they seek leave to add the causes of action previously dismissed by the Court and contained in their claim filed January 3, 2005. Turning to the merits, leave to amend pleadings is freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise from the delay in seeking the amendment (see Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; Turner v Caesar, 2 AD3d 1086 [3d Dept 2003]; CPLR 3025[b]). "When seeking leave to amend a pleading, it is incumbent upon a movant to make 'some evidentiary showing that the claim can be supported'" (Mathiesen v Mead, 168 AD2d 736, 737 [3d Dept 1990], quoting, Cushman & Wakefield v John David, Inc., 25 AD2d 133, 135 [1st Dept 1966]).

Here, claimants' second cause of action seeks damages for emotional distress suffered by Burg as a result of Susannah's injury. This cause of action plainly lacks merit as claimants have failed to allege extreme and outrageous conduct to support a cause of action for intentional infliction of emotional distress, or conduct that endangered Burg's physical safety or caused her to fear for her physical safety, to support a cause of action for negligent infliction of emotional distress (see Moore v Melesky, 14 AD3d 757 [3d Dept 2005]). Thus, leave to amend the claim to include the second cause of action is denied.

The Court reaches a different conclusion with respect to the third cause of action, alleging a derivative claim for Burg's loss of companionship, because this amendment does not plainly lack merit and no prejudice inures to defendant. In conducting its analysis, the Court is guided by the same factors considered in a late claim analysis, including notice and opportunity to investigate the incident, merit of the amendment, and excuse for delay (see Court of Claims Act § 10 [6]).

There was relatively little delay by claimants in seeking leave to amend their claim, as they immediately moved after the Court determined that they could not amend their claim as a matter of right. Next, this cause of action arises from the same occurrence as the pending claim and, because it is a derivative claim, the merit of this cause of action stands or falls on the merit of the pending claim (see e.g. Gastwirth v Rosenberg, 117 AD2d 706, 707 [2d Dept 1986], lv denied 68 NY2d 602 [1986]). In performing late claim analysis with respect to the pending claim, the Court determined that the pending claim was not patently meritless, defendant had notice of the incident and an opportunity to investigate it. Based on this prior determination, and given that this derivative claim arises from the same incident as the pending claim, the Court determines that no prejudice inures to defendant in amending the claim to include the third cause of action.[1] Accordingly, claimants are granted leave to amend their claim to include this cause of action.

The Court next addresses claimants' request for a change of venue from the Albany District to the White Plains District. Pursuant to CPLR 510 (3), the Court may exercise its discretion and change the place of trial of an action for the convenience of material witnesses and to promote the ends of justice (see Manchester Technologies, Inc. v Hansen, 6 AD3d 806, 807 [3d Dept 2004]). The moving party must establish: (1) the names, addresses and occupations of the witnesses; (2) the witnesses' proposed testimony to enable the court to determine if the testimony will provide necessary and material evidence; (3) a statement that these witnesses are willing to testify; and (4) a showing how these witnesses would actually be inconvenienced if the requested relief were not granted (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 172-173 [2d Dept 1995]).

Claimants' submissions list six witnesses that would be inconvenienced by venue in the Albany District. Claimants fail, however, to provide relevant information on four of the six witnesses, including Susannah's father. Instead, claimants rely on the inconvenience to Susannah and her mother and argue that, due to Susannah's cerebral palsy, trial would be more convenient in the White Plains District.

White Plains is located approximately 35 miles closer to Susannah's home in Connecticut than the Albany District, and is the city within which the office of claimants' counsel is located. Although claimants' submissions indicate that it would take approximately four hours to travel to Albany and only two hours to travel to White Plains, defendant's submissions indicate that the traveling time is virtually the same. It is without question that the testimony of Susannah and her mother are necessary and material to this claim. The Court determines, however, that claimants have failed to carry their burden and establish that the White Plains District is more convenient for trial than the Albany District. While the Court is certainly sensitive to Susannah's medical needs, there is simply insufficient support in the record to establish that White Plains is a more convenient venue than Albany. In making this determination, the Court recognizes that defendant's witnesses are located in Essex County, and travel to White Plains would be considerably farther than Albany. Further, the Court is unpersuaded by claimants' assertion that the necessity of traveling at a lower speed has any bearing on this issue, as presumably claimants would travel at the same rate of speed to either White Plains or Albany. Accordingly, claimants' request for a change of venue is denied.

Accordingly, claimants' motion M-70338 is granted as to the third cause of action and denied as to the second cause of action. Claimants shall serve and file their amended claim within 30 days of the filing of this Decision and Order. Claimants' motion M-70339 is denied.

February 23, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed June 23, 2005;

2. Affirmation of James W. Badie dated June 21, 2005; unnumbered Exhibit annexed;

3. Affirmation of Kathleen M. Arnold filed July 13, 2005; Exhibit A annexed;

4. Reply Affirmation of James W. Badie filed September 8, 2005; unnumbered Exhibit annexed;

5. Notice of Motion filed June 23, 2005;

6. Affirmation of James W. Badie dated June 21, 2005;

7. Affidavit of Judith Burg sworn to June 17, 2005;

8. Affirmation of Kathleen M. Arnold filed July 13, 2005;

9. "Affirmation" of Don Dew sworn to July 15, 2005; Exhibits A-B annexed;

10. Reply Affirmation of James W. Badie filed September 9, 2005.

[1]In making this determination, the Court also notes that the Statute of Limitations has not expired on this cause of action, which is also a factor considered in late claim analysis (Court of Claims Act § 10[6]).