New York State Court of Claims

New York State Court of Claims

WILLIAMS v. STATE OF NEW YORK, #2007-018-558, Claim No. 109440, Motion Nos. M-72442, CM-72525


Synopsis


Claimant’s motion is granted in its entirety and Defendant’s motion is partially granted - the Note of Issue is stricken.

Case Information

UID:
2007-018-558
Claimant(s):
RUSSELL S. WILLIAMS
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
WILLIAMS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109440
Motion number(s):
M-72442
Cross-motion number(s):
CM-72525
Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CHERUNDOLO, BOTTAR & LEONE, LAWYERS, PLLCBy: Lauren H. Seiter, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant’s counsel brought a motion to amend the claim to substitute the name of the

Executrix of Decedent’s estate as Claimant in the caption, to amend the named Defendants, and to add a wrongful death cause of action. Defendant brings a cross-motion to strike the note of issue and certificate of readiness to permit further discovery if Claimant’s counsel’s request to amend the claim to add a wrongful death cause of action is granted. Defendant also seeks to have the scheduled trial date stricken. Claimant’s counsel, in response to Defendant’s cross-motion, indicates that a notice of intention to file a claim for the wrongful death cause of action was served upon Defendant on November 27, 2006, 90 days after the appointment of an Administratrix (Court of Claims Act § 10[2]). As a result, Claimant’s counsel indicates that a new claim will be filed asserting the wrongful death cause of action and the portion of the motion seeking to amend the existing claim to add the wrongful death cause of action is withdrawn because counsel does not want the note of issue and certificate of readiness stricken or the date of trial removed from the Court’s trial calendar.

The Court will grant Claimant’s counsel’s motion. The claim’s caption is amended to reflect as the Claimant, Laura A. Williams, as Executrix of the Estate of Russell S. Williams, and to reflect the State of New York as the only Defendant (see Court of Claims Act §§ 9 and 15).

The Court also grants Claimant’s counsel’s motion seeking to amend the filed claim to add a wrongful death cause of action. Before or after judgment, leave to amend pleadings shall be freely given within the discretion of the trial court, upon such terms as may be just, absent prejudice to the opposing party (CPLR 3025[c]; Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18). In the interest of judicial economy, it is more efficient to amend the existing claim to add the wrongful death cause of action than to have an entirely new claim brought where the issues are inter-related, stem from the same facts and circumstances, and involve most of the same witnesses. Yet, the Court can appreciate Defendant’s position in its cross-motion that additional discovery is necessary. As a result, Defendant’s motion is also partially granted to the extent that the note of issue and certificate of readiness is stricken.

Accordingly, Claimant’s motion is granted in its entirety. Claimant shall file and serve the amended claim attached to her motion papers as Exhibit F, with two modifications, that is reflecting only the “State of New York” as the Defendant, and remove the word, “Individually,” from the caption of the action.[2] Filing and service of the amended claim shall occur within 30 days of the date this Decision and Order is filed with the Clerk of this Court. Defendant’s cross-motion is also granted to the extent that the Clerk of the Court is directed to strike the note of issue and certificate of readiness in this matter. The parties are free to pursue additional discovery. The Preliminary Conference Stipulation and Order dated December 14, 2004, is hereby amended to reflect that all discovery on this amended claim shall be completed on or before September 4, 2007, and a note of issue and certificate of readiness shall be filed on or before September 17, 2007. The trial in this matter shall remain scheduled for January 23, 2008,[3] as long as the note of issue and certificate of readiness is filed on or before September 17, 2007. In the event the note of issue and certificate of readiness is not filed by that date the trial date will be adjourned.


February 22, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


Notice of Motion.................................................................................................1


Affidavit of Lauren H. Seiter, Esquire, in support, with exhibits attached

thereto......................................................................................................2


Notice of Cross-Motion.......................................................................................3


Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General

in support of cross-motion and in opposition to the motion,

with exhibit attached thereto....................................................................4


Affidavit of Lauren H. Seiter, Esquire, in opposition to Defendant’s

cross-motion, and in support of Claimant’s motion,

with exhibit attached thereto....................................................................5



[2].No individual claim of the executrix is alleged, and none could be asserted at this juncture because it would be untimely (Court of Claims Act § 10[3]).
[3].The date of the commencement of the trial has been changed to January 23, 2008, as January 22, 2008 is Martin Luther King Day.