New York State Court of Claims

New York State Court of Claims

LIEBER v. THE STATE OF NEW YORK, #2008-009-016, Claim No. 112166, Motion No. M-74871


Synopsis


Claimants’ motion to amend their claim was granted.

Case Information

UID:
2008-009-016
Claimant(s):
DARLEEN LIEBER and ROBERT LIEBER, Individually and as Parents and Natural Guardians of JORDAN LIEBER, an Infant over the age of Fourteen Years
Claimant short name:
LIEBER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112166
Motion number(s):
M-74871
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
RIEHLMAN, SHAFER AND SHAFER
BY: Jane G. Kuppermann, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
July 14, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking permission to amend their claim, as well as to coordinate discovery with a companion Supreme Court action.

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


Memorandum of Law 3

In this claim, which was filed with the Clerk of the Court of Claims on April 3, 2006, claimants Darleen Lieber and Robert Lieber seek damages for injuries allegedly suffered by their infant child, Jordan Lieber[1], during a surgical procedure for a right uteropelvic junction obstruction performed at the State University of New York University Hospital at Syracuse on May 9, 2005. In their filed claim, claimants have proceeded solely under a theory of res ipsa loquitur. Claimants now seek to amend their claim by adding a cause of action based upon allegations of medical malpractice. Pursuant to CPLR Rule 3025(b), a party may amend pleadings at any time with Court approval, which shall be freely given. It is well settled that in the absence of prejudice or surprise resulting therefrom, leave to amend pleadings should be granted (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). In this particular matter, it appears that the cause of action for medical malpractice is based upon the same underlying facts that form the basis of the original claim asserted under a theory of res ipsa loquitur. Therefore, it does not appear that there would not be any prejudice or surprise whatsoever to the defendant in allowing claimants to serve and file their amended claim.

Additionally, claimants have submitted an affidavit from their medical expert (see Exhibit H to Items 1,2) which satisfies the Court, for purposes of this motion, that the proposed amended claim has merit. Furthermore, no objections have been raised by the defendant.[2]

In this motion, claimants have also requested an amended scheduling order from this Court which would allow them to coordinate depositions and additional discovery with a companion action commenced in Supreme Court. It is noted that this Court has already issued an “Amended Order” dated April 28, 2008, directing that all discovery be completed on or before February 28, 2009, and requiring that a Note of Issue and Certificate of Readiness be served and filed on or before June 30, 2009. Accordingly, this aspect of claimants’ motion is moot.

Accordingly, based on the foregoing, therefore, it is

ORDERED, that Motion No. M-74871 is hereby GRANTED, in part, and claimants are hereby directed to serve their amended claim upon the Attorney General and file their amended claim with the Clerk of the Court within 30 days from the filing date of this Decision and Order; and it is further

ORDERED, that 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 such service.


July 14, 2008
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. According to the proposed amended claim, Jordan Lieber was born on September 23, 1989, and has now reached the age of majority.
[2]. Defendant’s attorney notified Chambers that he had no objection to the relief sought by claimants herein.