For the reasons set forth below, the motion to serve and file an Amended Claim
By Decision and Order dated April 30, 2009, this Court granted Claimant, Lukman
Murti, permission to serve and file a Claim late pursuant to Court of Claims Act
§ 10(6) (see Murti v State of New York, Claim No. None,
Motion No. M-76246, McCarthy, J. [UID No. 2009-040-039]). The Court denied the
motion of Fonny Murti on the basis that no cause of action was asserted on her
behalf. The Claim alleges that, on July 10, 2008 between 9:00 and 9:30 p.m.,
Lukman Murti fell in a parking lot owned and/or maintained by Defendant. It is
further alleged that the parking lot is adjacent to a building located at 677
Broadway, Albany, New York. It is asserted that Lukman Murti was caused to fall
over a raised manhole cover as a result of the State’s negligent
maintenance of the area.
Claimant now seeks to amend the Claim to add a derivative cause of action on
behalf of Fonny Murti for the loss of companionship, society, support and
consortium of her husband, Lukman Murti.
CPLR 3025(b) provides that leave to amend shall be freely given upon such terms
as are just. Leave to amend a Claim should be freely granted, so long as the
proposed amendment does not prejudice or surprise the Defendant, is not
“patently devoid of merit” and is not “palpably
insufficient” (Shovak v Long Is. Commercial Bank, 50 AD3d 1118,
1120 [2d Dept 2008]; Pellegrini v Richmond County Ambulance Serv., Inc.,
48 AD3d 436, 437 [2d Dept 2008]).
Here, Claimant is seeking to amend the Claim to add a derivative claim on
behalf of a new Claimant, not amend the Claim to add an additional cause of
action for the existing Claimant.
Pursuant to Court of Claims Act provisions applicable to personal injury
actions, Ms. Murti was required to file and serve her claim within 90 days from
the date of accrual unless a written Notice of Intention to File a Claim was
served upon the Attorney General within such time period. In that case, the
Claim itself was required to be filed and served upon the Attorney General
within two years after the accrual of the Claim (Court of Claims Act § 10
). The statutory requirements conditioning suit must be strictly construed
(Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ;
Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Here, Ms. Murti’s Claim accrued on July 10, 2008 when her husband’s
Claim accrued. Therefore, her Claim was not timely served and filed in
accordance with Court of Claims Act § 10(3). “The statutory
provisions of the Court of Claims Act may not be circumvented by an amendment of
an original claim” (Grande v State of New York, 160 Misc2d 383, 386
[Ct Cl 1994]; see Burrows Paper Co. v State of New York, 174 Misc
850, 856 [Ct Cl 1940]). Ms. Murti’s remedy is to seek permission to serve
and file a late Claim pursuant to Court of Claims Act § 10(6) prior to
expiration of the underlying statute of limitations. The motion to amend Lukman
Murti’s Claim is, therefore, denied.