Notice of Motion, Affidavit in Support, with Exhibit (Proposed Amended
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
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.
to this amendment the failure to include an ad damnum
a jurisdictional defect in the claim (Kolnacki v State of New York
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.
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
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.
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.