New York State Court of Claims

New York State Court of Claims

MCDANIEL v. THE STATE OF NEW YORK, #2009-015-193, Claim No. 114623, Motion No. M-76558


Synopsis


Claimant’s renewal motion for leave to amend claim to add additional facts related to the original claim and decrease the ad damnum was granted in part and denied in part.

Case Information

UID:
2009-015-193
Claimant(s):
TIMOTHY MC DANIEL
Claimant short name:
MCDANIEL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114623
Motion number(s):
M-76558
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Timothy McDaniel, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves to renew his prior motion to amend his claim. In a prior Decision and Order filed March 24, 2009 this Court denied the claimant's motion to amend his claim with leave to renew upon proper service of the motion, including all exhibits thereto. The instant motion, having now been properly served, is granted to the extent set forth below. Claimant allegedly sustained injuries during the course of evacuating the mess hall at Great Meadow Correctional Facility on May 19, 2006 following the release of tear gas. He now seeks to amend the claim to add additional facts related to the original claim, expand upon the allegations of negligence, the nature of his injuries and treatment and to decrease the ad damnum. The defendant objects to the proposed amended claim only to the extent it may be construed as alleging a claim for medical negligence.

Section 206.7(b) of the Uniform Rules for the Court of Claims ( 22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR 3025. CPLR 3025(b) provides that "a party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just..." . Leave to amend a pleading shall be freely given unless the proposed amendment plainly lacks merit or would cause the nonmoving party to suffer prejudice or unfair surprise (Bastian v State of New York, 8 AD3d 764, 765 [2004]; McCaskey, Davies and Assoc., Inc. v New York City Health & Hospitals Corp., 59 NY2d 755, 757 [1983]). Here, the claimant seeks to amend the claim to add additional facts related to the original claim and expand upon the allegations of negligence. In addition, the ad damnum in the proposed amended claim is decreased. Defendant does not object to the proposed amended claim except to the extent that it may be construed as adding a claim for medical negligence. Defendant's concern appears to stem from paragraphs "37" and "38" of the proposed amended claim in which the claimant alleges the following:
"37. On February 8, 2008 . . . claimant was informed [by a facility doctor] that he would [be] receiving continuous physical therapy.

38. Since the above dated doctor's appointment, claimant have not received further physical therapy until October of 2008."

To the extent these allegations may be construed as alleging a claim for medical negligence, the Court agrees that amendment of the claim would be improper and prejudicial to the defendant. Accordingly, the Court will grant claimant's motion for leave to serve and file the proposed amended claim with paragraphs "37" and "38" deleted.

Claimant's motion to renew his prior motion to amend the claim is granted and the claimant is directed to serve and file the proposed amended claim with paragraphs "37" and "38" deleted within 30 days of the date this Decision and Order is filed.



July 23, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 13, 2009;
  2. "Affirmation" of Timothy McDaniel sworn to April 13, 2009 with exhibits;
  3. Affirmation of Michael T. Krenrich dated May 13, 2009.