Claimants' motion for an order permitting them to increase the ad damnum clause of their claim was granted.
|Claimant(s):||CINDY L. PETTIT and CHARLES E. PETTIT, JR.|
|Claimant short name:||PETTIT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||WEGERSKI LAW FIRM
BY: John P. Wegerski, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Edward F. McArdle, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2010|
|See also (multicaptioned case)|
Claimants have brought this motion seeking an order permitting them to increase the ad damnum clause, set forth in their claim from $850,000.00 to $3,500,000.00.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of John P. Wegerski, Esq., Affidavit of Cindy L. Pettit, Affidavit of Charles E. Pettit, Jr., Affidavit of Richard J. DiStefano, M.D., Affidavit of Robert L. Tiso, M.D. 1-6
Memorandum of Law 7
Affirmation in Opposition 8
In a decision dated October 28, 2008 following a bifurcated trial as to liability, this Court found the State 100% liable for the injuries suffered by claimant Cindy L. Pettit in a motor vehicle collision with a New York State Police patrol vehicle. At the present time, a date for the damages trial has not yet been established.
As previously stated, claimants seek permission to increase their ad damnum clause in their claim to $3,500,000.00, contending that the permanency, progressive nature, and extent of claimant Cindy Pettit's injuries, and the substantial costs she has incurred will continue to incur for medical care and treatment, were not known or reasonably foreseeable at the time the claim was filed. With this motion, claimants have provided affidavits from two of Cindy Pettit's medical providers, together with medical records, which detail the medical treatment which has been provided to her following this accident, including back surgery which was performed in 2002. Additionally, in her affidavit, Cindy Pettit has described the pain and suffering suffered by her, as well as the medical treatment that she has undergone over these years. Charles E. Pettit, Jr., Cindy Pettit's husband, has also submitted an affidavit describing the additional household duties that he has undertaken and the additional care that he has provided for his wife since this accident.
Defendant's opposition to this request is based primarily upon allegations of prejudice, due to the substantial delay from Ms. Pettit's back surgery in 2002 before making this application, and that claimants have failed to set forth any proof of economic loss or the cost of the medical treatment that she has undergone.
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 regard, "[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 Construction Corp., supra at 23).
In this particular matter, the Court has recently conducted a conference on this claim, and with the consent of the parties, has provided the defendant with an opportunity, at its option, to conduct a further deposition and independent medical examination of claimant Cindy Pettit, on or before May 3, 2010. As a result, the Court finds that defendant will not suffer any prejudice in the defense of this claim.
As to defendant's contention that claimants have failed to provide any proof of their economic loss or medical costs, that is a matter to be addressed at trial and obviously, claimants still have the burden of establishing their entitlement to these damages at that time.
Accordingly, it is
ORDERED, that claimants' Motion No. M-77249 seeking to increase the ad damnun clause in their claim from $850,000.00 to $3,500,000.00 is hereby GRANTED.
March 2, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims