New York State Court of Claims

New York State Court of Claims

DIMURO v. STATE OF NEW YORK, #2008-037-035, Claim No. 114129, Motion No. M-75290


Synopsis



Case Information

UID:
2008-037-035
Claimant(s):
ROBERT DIMURO, 06-A-2625
Claimant short name:
DIMURO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114129
Motion number(s):
M-75290
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Robert DiMuro, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Claimant’s motion to amend the claim:
  1. Notice of motion and supporting affidavit of pro se Claimant, Robert DiMuro, sworn
to July 17, 2008;

  1. Unsworn affidavit of Assistant Attorney General William D. Lonergan dated August
19, 2008;[1]


Filed documents: Claim filed August 23, 2007; Answer filed September 14, 2007.

This is a personal injury action arising out of an incident which occurred on July 21, 2006, while the pro se Claimant was incarcerated at Collins Correctional Facility, when a picnic table upon which the Claimant and others were sitting collapsed. Claimant brings this motion pursuant to CPLR 3025 (b) for permission to increase the ad damnum clause in the claim from $2,800 to $2,800,000 and to add a cause of action for punitive damages.

Pursuant to CPLR 3025 (b), leave to amend a pleading is to be “freely given upon such terms as may be just . . . .” When, however, the proposed amendment lacks merit as a matter of law, leave to amend must be denied (Felix v State of New York, Ct Cl, August 18, 2008, Scuccimarra, J., Claim No. 114614, Motion No. M-75220, UID # 2008-030-550).[2] “[T]he waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its political subdivisions.” (Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]). Accordingly, Claimant’s motion for leave to amend the claim to allege punitive damages is denied.

Claimant has further moved for permission to amend the ad damnum clause in the claim. In this regard, Claimant alleges that the jail house lawyer who assisted him made a typographical error when he typed the ad damnum clause as $2,800 instead of $2,800,00, and that this typo was “predicated upon the inmate ‘intoxication’ i.e., under the influence of psychotropic medication.” Defendant does not argue that the State would be prejudiced by an increase in the ad damnum clause and, in fact, Defendant does not oppose the proposed increase. Accordingly, it is hereby

ORDERED, that Claimant’s motion M-75290 for leave to amend the claim to add a cause of action for punitive damages is denied; and it is further

ORDERED, that Claimant’s motion M-75290 to increase the ad damnum clause is granted and claim no. 114129 is deemed amended to reflect $2,800,000 in the ad damnum clause.


September 29, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. On August 15, 2008, a sworn affidavit in opposition to Claimant’s motion was filed. The first page of this affidavit indicated that Assistant Attorney General Gregory P. Miller was being sworn and deposed. Unfortunately, the affidavit was signed by Assistant Attorney General William D. Lonergan. Once this mistake was realized, Mr. Lonergan resubmitted an identical, but unsworn, affidavit in opposition to Claimant’s motion. This affidavit was filed on August 21, 2008. Because the outcome of Claimant’s motion would be the same even if it was unopposed, the Court has considered Mr. Lonergan’s unsworn affidavit.
[2].This and other unreported decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.