New York State Court of Claims

New York State Court of Claims

RISCH v. THE STATE OF NEW YORK, #2009-009-005, Claim No. 113433, Motion Nos. M-75774, CM-76021


Claimant’s motion seeking permission to amend his claim was granted, as was defendant’s motion seeking a protective order striking certain portions of claimant’s discovery demands.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 19, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-75774) seeking an order permitting him to amend his claim. In addition to opposing this motion, defendant has brought a cross-motion (CM-76021) seeking a protective order to strike certain portions of claimant’s discovery demands.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with Exhibit (Proposed Amended Claim) 1,2

Affirmation in Opposition, with Exhibits 3

Reply Affidavit 4

Notice of Cross-Motion, Affirmation in Support, with Exhibits 5,6

“Reply” Affidavit, with Attachments 7

In the within claim, claimant, an inmate appearing pro se, seeks to recover damages for personal injuries based upon allegations of medical malpractice occurring while he was incarcerated at Mid-State Correctional Facility.

In his motion (M-75774), claimant seeks permission to serve and file an amended claim. Defendant’s attorney acknowledges in his opposing affirmation, that the only substantive difference between the original claim and the proposed amended claim is an increase in the ad damnum clause. In 2007, the State Legislature amended § 11(b) of the Court of Claims Act to eliminate the requirement that a claim state the “total sum claimed”in certain actions (including medical malpractice.[1] Prior to this amendment the failure to include an ad damnum clause constituted a jurisdictional defect in the claim (Kolnacki v State of New York, 8 NY3d 277). Since this change, however, the ad damnum clause is no longer a necessary jurisdictional element which must be included in those actions or claims covered by the amendment.[2]

Defendant therefore contends that claimant’s application to amend his claim, solely to increase the ad damnum clause, is not necessary. The Court notes, however, that § 11(b) does not prohibit the inclusion of an ad damnum clause in such claims.

It is well settled that pursuant to CPLR Rule 3025(b), leave to amend pleadings shall be freely given. Furthermore, a motion to increase the ad damnum clause, whether made before or after trial, should generally be granted if there is no prejudice to the defendant (Loomis v Civetta Corinno Construction Corp., 54 NY2d 18, rearg denied 55 NY2d 801).

In this particular claim, defendant has not claimed that it will suffer any prejudice should claimant be allowed to increase his ad damnum clause. Therefore, notwithstanding the amendment to § 11(b), claimant should be granted permission to serve and file his proposed amended claim.

In its cross-motion, defendant has moved for a protective order based upon its objections to certain Interrogatories and document production demands set forth in claimant’s Request for Discovery and Production.

In his Request for Discovery and Production, claimant set forth ten interrogatories, and also made four specific demands for the production of documents. Defendant, in its Response to these Interrogatories and Demands, objected to seven of the interrogatories and two of the document demands.

The Court has reviewed the seven interrogatories for which defendant has raised objections. Among other things, these questions seek personal information from the two physicians who treated claimant at Mid-State Correctional Facility, and whose actions or inactions are at issue in this claim. For example, claimant seeks information from the income tax returns of these two physicians for a period of ten years (Interrogatory No. 6), prior occupations of the physicians (Interrogatory No. 2), whether the physicians have ever been convicted of a crime of any nature (Interrogatory No. 3), and whether these physicians have been involved in any prior civil actions, either as a plaintiff or defendant (Interrogatory No. 4). Not only do these Interrogatories seek potentially privileged information, they are also palpably improper as they bear no relevance whatsoever to the issues involved in this claim, i.e., whether the medical treatment provided by these two physicians constituted medical malpractice.

Similarly, in his demands for the production of certain documents, claimant, among other things, has requested copies of the medical degrees, licenses, and disciplinary histories for these two physicians (Demand No. 4). Additionally, claimant has sought similar information for a psychologist at the facility, and whether this psychologist has been involved in any prior civil litigation, either as a plaintiff or defendant (Demand No. 2). The Court finds that these demands, although couched in a “Demand for the Production of Documents”, also seek personal information which is potentially privileged, and is also not relevant to the issues involved in this claim.

Although the Court does not find that these Interrogatories and Demands were necessarily intended to “embarrass and harass witnesses” as claimed by defendant’s attorney, (see Item 6, par. 2), the Court does find that the responses and information sought by claimant in these particular Interrogatories (Interrogatories No. 1-7) and his Demand for the Production of Documents (Demands No. 2 and 4) are improper and not relevant to the issues to be resolved in this claim.[3]

Accordingly, defendant is entitled to a protective order and need not respond to these specific Interrogatories and Demands.

Accordingly, it is

ORDERED, that Motion No. M-75774 is hereby GRANTED; and it is further

ORDERED, that claimant shall file and serve his amended claim (set forth as an Exhibit to Motion No. M-75774) within 30 days from the filing date of this Decision and Order; service by regular, first class mail, shall be deemed sufficient; and it is further

ORDERED, that pursuant to § 206.7(b) of the Uniform Rules for the Court of Claims, defendant shall serve and file its amended answer within 40 days after service of this amended claim; and it is further

ORDERED, that Cross-Motion No. CM-76021, seeking a protective order striking certain Interrogatories and Demands of the claimant, is GRANTED.

March 19, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Laws of 2007, ch 606.
[2]. The 2007 Amendment to § 11(b) eliminates the jurisdictional requirement of setting forth a “total sum claimed” for those actions seeking to recover damages “for personal injury, medical, dental or podiatric malpractice or wrongful death”.
[3]. Interrogatory No. 1 is essentially a request for an admission (CPLR § 3123) and is not in proper form as an interrogatory (CPLR § 3130 et. seq.). In any event, it appears that claimant is already in possession of the requested information (see Attachment to Claimant’s “Reply”, Item 7).