New York State Court of Claims

New York State Court of Claims

SHEETS v. STATE OF NEW YORK , #2007-018-577, Claim No. 112337, Motion No. M-73232


Synopsis



Case Information

UID:
2007-018-577
Claimant(s):
MICHAEL SHEETS and CONNIE SHEETS
Claimant short name:
SHEETS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112337
Motion number(s):
M-73232
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
MICHAELS & SMOLAK, P.C.By: Lee S. Michaels, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: PATRICK MacRAE, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 6, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants bring a motion for permission to amend their claim to assert the

State’s vicarious liability for the actions of various doctors and other medical personnel at the State University Hospital. Defendant does not oppose the motion.

Claimants served a timely notice of intention on September 20, 2004, and thereafter filed a claim on May 15, 2006, and served a copy upon the Assistant Attorney General. The claim alleges that on July 12 through 15, 2004, Claimant, Michael Sheets, was an in-patient at the State University Hospital in Syracuse and returned to the Trauma Clinic there on July 29, 2004. From July 12 through July 29, at State University Hospital, Claimants allege Dr. Howard Simon, Dr. Paul Cunningham, Dr. Temoor Anwar, Dr. Andrij Wohtowycz, Nurse Practitioner Martin Baker, and Physician Assistant Heidi Gwilt departed from the standard of care in treating Claimant Michael Sheets’ knee injury. Defendant has answered the claim. Discovery is not complete.

Claimants now seek to amend their claim pursuant to CPLR 3025 to assert an allegation that the State is vicariously liable for the actions of the doctors and medical personnel in caring for and treating Claimant, Michael Sheets. Claimant also seeks to correct the spelling of Physician Assistant Gwilt’s last name.

CPLR 3025(b) permits a party to amend or supplement his pleadings by leave of Court. The statute directs that “[l]eave shall be freely given upon such terms as may be just...” Leave should be given where the opposing party is not surprised or prejudiced by the proposed amendment and the proposed amendment appears to be meritorious (see, Nastasi v Span, Inc., 8 AD3d 1011, 1013; Paolano v Southside Hosp., 3 AD3d 524, 524).

Defendant did not interpose a response arguing surprise or prejudice, and in its answer denies sufficient information and belief to admit or deny that the alleged doctors and medical personnel were acting within the scope of their employment in caring and treating Claimant, Michael Sheets, in July 2004; thus, the theory of vicarious liability is potentially meritorious. Accordingly, the Court will grant Claimants’ motion and permit the amendment. Claimants shall file and serve their amended claim as submitted on the motion within 30 days of the date this Decision and Order is filed with the Clerk of the Court.



August 6, 2007
Syracuse, New York

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


The Court has considered the following documents in deciding this motion:


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


Affidavit of Lee S. Michaels, Esquire, in support, with exhibits

attached thereto.........................................................................2


No response was filed by the Defendant.