New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2007-009-013, Claim No. 105883, Motion No. M-73142


Synopsis


Claimant’s motion seeking permission to amend his claim was granted.

Case Information

UID:
2007-009-013
Claimant(s):
GEORGE CLARK
Claimant short name:
CLARK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105883
Motion number(s):
M-73142
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ZWIEBEL, BRODY, GOLD & FAIRBANKS, LLP
BY: Majer H. Gold, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
ATTORNEY GENERAL(No Appearance).
Third-party defendant’s attorney:

Signature date:
May 7, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order permitting him to amend his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

On March 15, 2002, claimant, an inmate at Auburn Correctional Facility, was seriously injured in an industrial accident which occurred while he was working in the license plate blanking shop. Claimant’s left hand was caught in an industrial press as he attempted to clean out debris from the stamping area of the press. A claim seeking damages for the personal injuries suffered by him in this accident was then filed with the Clerk of the Court of Claims on April 10, 2002.

Following a bifurcated trial as to liability, this Court, in a Decision dated December 28, 2006, found the State fully liable for the personal injuries suffered by claimant. A trial as to the issue of damages has not yet been scheduled.

In this motion, claimant now seeks to increase the ad damnum clause in his claim from $2,000,000.00 to $5,000,000.00, and also seeks an amendment of the claim to specify additional damages suffered by claimant subsequent to the filing of his claim.

As noted above, the claim was filed with the Clerk of the Court of Claims on April 10, 2002. Despite attempts to save his left hand, however, amputation of his left hand and wrist was required, and this surgery was performed on May 3, 2002. Since this surgery was performed subsequent to the filing of his claim, the amputation of claimant’s left hand and wrist is not reflected in his claim. In his supporting affirmation, however, claimant’s counsel advises the Court that the State was kept apprised of these developments through pleadings and other disclosure.

It is well settled that pursuant to CPLR Rule 3025(b), leave to amend pleadings shall be freely given. Furthermore, a motion to increase the ad damnum clause, whether made before or after trial, should generally be granted if there is no prejudice to the defendant (Loomis v Civetta Corinno Construction Corp., 54 NY2d 18, rearg denied 55 NY2d 801).

In this particular claim, since no date has yet been set for the damages trial, it is the opinion of this Court that defendant will not suffer any prejudice in the defense of this claim should this request be granted. Furthermore, claimant is not seeking to add any new cause of action to his claim, but merely seeks to add additional items of damages which were not evident at the time this claim was originally served and filed. The State, however, has been made fully aware of these additional allegations of damages, and therefore will not be prejudiced or surprised.

Accordingly, therefore, it is

ORDERED, that Motion No. M-73142 is hereby GRANTED; and it is further

ORDERED, that claimant shall serve his amended claim (set forth as Exhibit I to Items 1,2) upon the Attorney General within 30 days from the filing date of this Decision and Order, and service by regular, first class mail, shall be deemed sufficient service; and claimant shall thereafter file the original and two copies of the amended claim with the Clerk of the Court of Claims, together with his affidavit of service upon the Attorney General within 30 days of such service; and it is further

ORDERED, that since the issue of liability has already been determined by this Court, the new allegations set forth in the amended claim shall be deemed denied and the defendant, in its discretion, need not serve and file an amended answer.


May 7, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims