New York State Court of Claims

New York State Court of Claims

BRITO v. THE STATE OF NEW YORK, #2008-040-052, Claim No. 113865, Motion Nos. M-74149, M-74150, M-74275, M-74422, M-74689, M-74690


Pro Se
Inmate – 6 separate motions: 3 to amend Claim – 2 are denied, 1 granted in part, 2 motions for TROs and Injunctions on basis of lack of jurisdiction. Motion to compel production denied as moot.

Case Information

1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-74149, M-74150, M-74275, M-74422, M-74689, M-74690
Cross-motion number(s):

Claimant’s attorney:
Leslie Brito, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Dennis M. Acton, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s Motion Nos. M-74149, M-74150, M-74422 and M-74690 are denied; Motion No. M-74275 is denied as moot; and Motion No. M-74689 is granted in part and denied in part.
The Claim, which was filed with the Clerk on June 18, 2007, arises in connection with medical treatment received by Claimant, Leslie Brito, when he was incarcerated at Greene Correctional Facility (hereinafter Greene) in Coxsackie, New York
In his Claim, Claimant states that on March 2, 2006 he was placed in the care and custody of the Department of Correctional Services (DOCS) at Downstate Correctional Facility. He was given a medical examination at Downstate and transferred to Bare Hill Correctional Facility.[2] Claimant states that during the months of March through June 2006, he made frequent complaints of sudden and unanticipated bleeding.[3] Because of those symptoms, he was seen by a cardiologist on April 17, 2006 and again in May 2006. He was then moved to Greene. He asserts that the move was made because the cardiologist recommended that he be held at a location closer to a regional medical unit. He states that, in June 2006, he reported more unanticipated episodes of bleeding but was told that nothing could be done. On July 6, 2006, he experienced a particularly serious episode and requested medical assistance. He asserts that his request was denied for some time, despite repeated requests, but, after approximately 25 minutes, he was sent to the infirmary. There, he was given gauze and told to hold his head over a basin. He became light-headed and fell out of his chair. He was then placed on an examination table, and the bleeding continued. He estimates that it was approximately one and one-half hours before he was taken to an outside hospital. The bleeding was stopped and he was returned to Greene the following day. Based on those facts, Claimant alleges multiple causes of action in negligence or medical malpractice, which either assert that he received inadequate medical treatment, or set forth various types of damages that he allegedly suffered.
In connection with this action, Claimant has instituted six motions.[4] Two of them, Motion Nos. M-74149 and M-74690, ask the Court to issue a temporary restraining order and an injunction. “As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief” (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], citing to Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]; Psaty v Duryea, 306 NY 413, 416 [1954]). Consequently, this Court is without power to issue an injunction (Matter of Milner v New York State Higher Educ. Services Corp., 4 Misc 3d 221, 225 [Ct Cl 2004], affd 24 AD3d 977 [3d Dept 2005]). The motions must be denied.
Motion No. M-74275 seeks to compel the production of certain documents and responses to interrogatories. Defense counsel has informed the Court that the information has been provided to Claimant and, by correspondence received March 28, 2008, Claimant advised the Court that Motion No. M-74275 “has been satisfied by the office of the Attorney General.” Consequently, that motion is denied as moot.
The three remaining motions all seek to amend or supplement the original Claim. In Motion No. M-74150, Claimant seeks to add allegations that he was diagnosed, in May 2007, with an additional illness (mitral valve regurgitation/ventricular tachycardia), that he was improperly required to perform heavy, strenuous work, and that a lab technician has returned to using a straight (vacutek) needle rather than the butterfly needle that Claimant finds to be less painful when blood is drawn. In Motion No. M-74422, Claimant seeks to add allegations that, on or about September 27, 2007, correction officials stopped prescribing a blood-thinning medication (Coumadin). Claimant asserts that he had taken that medication since 2005 and that his cardiologists have indicated that he needs it in order to prevent a blood clot, which could cause death. In Motion No. M-74689, Claimant seeks to add allegations relating to a February 14, 2008 episode of unexpected bleeding which did not receive adequate treatment[5] and that prison officials did not assign him to the housing unit recommended by his doctors.
Defendant opposes Motion No. M-74150, asserting that the proposed additional allegations are unrelated to the allegations contained in the Claim, would be time-barred standing alone, and that jurisdictional requirements have not been met under the Court of Claims Act (“CCA”). The State did not oppose Motion No. M-74422. Defendant does not oppose that portion of Motion No. M-74689 that attempts to include allegations relating to a February 14, 2008 episode of bleeding, as it relates to the course of treatment provided to Claimant, which is the subject of the original Claim. Defendant opposes, however, that portion of the motion that seeks to assert additional proposed allegations relating to decisions made by prison officials about the location where Claimant is housed.
CPLR 3025(b) provides that leave to amend shall be freely given upon such terms as are just. The phrase has been interpreted to mean that, in the absence of prejudice or unfair advantage, leave to amend should be given freely (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Nasuf Constr. Corp. v State of New York, 185 AD2d 305 [2nd Dept 1992]). “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:5; Arcuri v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]).
Prejudice to the nonmoving party is shown where that party is “hindered in the preparation of its case or has been prevented from taking some measure in support of its position” (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]).
The Court finds that the issue of Claimant’s housing assignment, addressed in Motion No. M-74689, was not raised in the original Claim, is unrelated to the transactions and occurrences giving rise to the Claim and, thus, it would be prejudicial to Defendant to permit it to be appended to the Claim. Similarly, the facts giving rise to the amendments proposed in Motion No. M-74150 (assignment to perform heavy work and use of a particular type of needle) and Motion No. M-74422 (failure to continue prescription of Coumadin) are not related to those that give rise to the instant Claim, would be prejudicial to Defendant, and it would be improper to allow the Claim to be amended to include them.
Thus, Motion Nos. M-74149, M-74150, M-74422 and M-74690 are denied; Motion No. M-74275 is denied as moot; and Motion No. M-74689 is granted in part and denied in part. Claimant is directed to serve and file the Amended Claim relating to the February 14, 2008 bleeding incident within twenty (20) days of the date of filing of this Decision and Order. Defendant is to serve and file an Answer to the Amended Claim within 40 days of the date of service of the Amended Claim (Uniform Rules for the Court of Claims § 206.7[b]).
September 10, 2008
Albany, New York
Judge of the Court of Claims
The following papers were read on Claimant’s motions:
Papers Numbered
Motion No. M-74149
& Exhibits attached 1
Motion No. M-74150
Motion No. M-74275
& Exhibit attached 7
Motion No. M-74422
& Exhibits attached 10
Motion No. M-74689
& Exhibits attached 11
Motion No. M-74690
& Exhibits attached 14
Filed Papers; Claim, Answer

[2]. In the Claim, Claimant states that he suffers from chronic heart disease, Grave’s disease, liver disease, ascites and edema, high blood pressure, high cholesterol, and chronic fatigue.
[3]. Although he does not specifically state the location of the bleeding, it appears from descriptions in his Claim that he was bleeding from his nose and mouth.
[4].The motions were transferred to the undersigned by Order of Transfer signed by Acting Presiding Judge of the Court of Claims, Thomas J. McNamara.
[5]. The allegations contained in Motion No. M-74422 notwithstanding, in his Motion No. M-74689, Claimant states that, after his nose started bleeding, he informed prison officials that he was currently taking Coumadin.