New York State Court of Claims

New York State Court of Claims

MILBACK v. STATE OF NEW YORK, #2008-042-507, Claim No. 109003, Motion No. M-74333


Synopsis


This motion is brought before the court by claimants, following the court’s interlocutory decision, for an order pursuant to CPLR § 3025 granting leave to file an amended claim for damages increasing the ad damnum clause. Claimants’ motion is granted.

Case Information

UID:
2008-042-507
Claimant(s):
CATHERINE A. MILBACK and DAVID J. MILBACK
Claimant short name:
MILBACK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109003
Motion number(s):
M-74333
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
MENTER, RUDIN & TRIVELPIECE, P.C.By: ROBERT G. BENNETT, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by claimants, made following the court’s interlocutory decision of August 23, 2007, for an order, pursuant to CPLR § 3025, granting leave to file an amended claim for damages, increasing the ad damnum clause. The court has considered the following papers:
1. Notice of Motion, filed December 17, 2007
2. Affidavit of Robert G. Bennett, sworn to December 13, 2007
3. Exhibits A - C, annexed to the moving papers
4. Letter from Joel L. Marmelstein, Esq., dated February 27, 2008

____________________________________________


The original claim sought damages for claimant Catherine A. Milback in the sum of $750,000.00 and for claimant David J. Milback, on his derivative claim, in the sum of $500,000.00. The proposed amended claim seeks damages for claimant Catherine A. Milback in the sum of $3,000,000.00 and for claimant David J. Milback in the sum of $2,000,000.00.

By letter dated February 27, 2008 defendant’s attorney has indicated that defendant will not oppose this motion.

The law is well established that amendments to ad damnum clauses are freely granted. As the court noted in McIver v State of New York, UID No. 2006-016-032, Claim No. 110890, Motion Nos. M-71045, M-71046, Marin, J.:


Amendment under such section [CPLR 3025 (b)] is generally granted absent any prejudice. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.14. With regard to amending the ad damnum clause, “[p]rejudice . . . is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position . . .” Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 444 NYS2d 571, 573 (1981).


The record is devoid of a showing of prejudice and, in practical terms, “regardless of the amount claimed, claimant still has the burden to establish her entitlement to these damages at trial” (Stockholm v State of New York, UID No. 2002-009-50, Claim No. 95825, Motion No. M-65742, Midey, J.).

Claimants’ motion seeking to increase the ad damnum clause is granted. Claimants are directed to file and serve an amended claim within thirty (30) days of the date of the filing of this decision and order.



April 7, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims