New York State Court of Claims

New York State Court of Claims

ZAPPALA v. THE STATE OF NEW YORK, #2007-009-015, Claim No. 112297, Motion No. M-73007


Synopsis


Claimant’s application to amend its claim was granted.

Case Information

UID:
2007-009-015
Claimant(s):
ZAPPALA FARMS, L.L.C.
Claimant short name:
ZAPPALA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112297
Motion number(s):
M-73007
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
BOND, SCHOENECK & KING, PLLC
BY: Brian J. Butler, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 22, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking leave to amend its claim so that it may add additional factual allegations and damages.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of James Zappala, Attorney’s Affidavit, with Exhibits 1,2,3


Memorandum of Law 4


Correspondence from Patricia M. Bordonaro, Esq., Assistant Attorney General 5

In this claim, claimant seeks to recover damages based upon allegations of negligence, nuisance and trespass of the State, arising out of its ownership, operation, maintenance and design of a drainage system which runs underneath New York State Route 38 in the Town of Sterling in Cayuga County. Claimant alleges that a culvert running under State Route 38 has been improperly repaired and maintained, reducing the water capacity of the culvert, and which then allegedly caused flooding on claimant’s property. In the original claim, claimant seeks damages related to the loss of its 2004 onion crop, allegedly as a result of flooding which occurred that year.

In this motion, claimant now seeks permission to assert additional damages relating to the loss of its 2006 onion crop, which allegedly occurred as a result of flooding occurring in July, 2006. Claimant seeks an amendment of its claim to specify these additional damages suffered subsequent to the filing of its claim, and also seeks a corresponding increase in the ad damnum clause from $2,500,000.00 to $4,920,000.00. Defendant’s attorney has voiced no objection to the relief requested in this motion (see Item 5).

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 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, claimant is not seeking to add any new causes of action to its claim, but merely seeks to add additional items of damages to the causes of action set forth in its original claim, allegedly occurring subsequent to the time that the claim was originally served and filed. Since these additional items of damages are based upon the same allegations which form the basis of the original claim, it is therefore appropriate that they be heard and considered together in this claim. By proceeding in this manner, the interest of judicial economy will be served, and both parties may benefit from a significant savings in time and expense of litigation.

Claimant’s counsel has also indicated that discovery in this claim is in its early stages, and that the State should therefore not suffer any prejudice or surprise by these proposed amendments. Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-73007 is hereby GRANTED; and it is further

ORDERED, that claimant shall serve its amended claim (set forth as Exhibit C to Items 1,2,3) upon the Attorney General within 30 days from the filing date of this Decision and Order. Claimant shall thereafter file this amended claim with the Clerk of the Court of Claims, together with its affidavit of service upon the Attorney General; and it is further

ORDERED, pursuant to § 206.7(b) of the Uniform Rules for the Court of Claims, defendant shall serve its answer to the amended claim within 40 days after service.

May 22, 2007
Syracuse, New York

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