New York State Court of Claims

New York State Court of Claims
PASTORELL v. THE STATE OF NEW YORK, # 2010-009-038, Claim No. 106909, Motion No. M-78742


Claimant's motion seeking leave to "supplement" his claim was denied, based upon the Court's finding that claimant was attempting to assert a new and different cause of action.

Case information

UID: 2010-009-038
Claimant short name: PASTORELL
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106909
Motion number(s): M-78742
Cross-motion number(s):
Claimant's attorney: DAVID J. PASTORELL, Pro Se
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: December 2, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, proceeding pro se, has brought this motion seeking leave to supplement his original claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affidavit in Support, Proposed "Supplement Original Filed Claim", with Exhibits 1-3

Affirmation in Opposition, with Exhibit 4

In his original claim, claimant seeks damages for personal injuries suffered by him when he fell from a top bunk at Watertown Correctional Facility, where he was then incarcerated, on November 30, 2000. This claim was served upon the Attorney General on or about November 12, 2002, and was filed with the Clerk of the Court of Claims on the same day. Claimant alleges that he suffered an injury to his right hand/wrist area as a result of this fall.

In the proposed "supplement" to his original claim, claimant now seeks to add new causes of action based upon the medical treatment he received for his right hand and wrist, including reconstructive surgery. Claimant has not provided any particulars as to the specific dates, treatments, or procedures to support his allegations, which sound in medical malpractice. It appears, based upon the medical records and notes submitted with this motion, that the medical treatment in question took place during 2001-2002, while claimant was incarcerated at Livingston Correctional Facility.

Pursuant to CPLR 3025(b), "[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." Furthermore, this provision dictates that such "[l]eave shall be freely given". Nevertheless, the decision as to whether to grant such a motion rests within the discretion of the Court (Swergold v Cuomo, 70 AD3d 1290).

In this particular matter, the allegations of medical malpractice, occurring during 2001-2002 at Livingston Correctional Facility, are completely separate and distinct from the incident which allegedly caused the injuries to claimant's right hand and wrist in November 2000 at Watertown Correctional Facility. While these new allegations relate to the right hand and wrist which were allegedly injured in his fall, they are not directly related to the allegations set forth in the original claim. These allegations involve entirely different proof, involving different correctional facility personnel from two different facilities. This Court therefore finds that the proposed supplement impermissibly expands the scope of the original claim (Matter of Miller v Goord, 1 AD3d 647).

Furthermore, leave to amend a pleading is inappropriate where it would result in prejudice or surprise to the opposing party (McCaskey, Davies & Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755). In this particular matter, the proposed supplemental allegations, made almost eight years after their occurrence, certainly would result in prejudice and surprise to defendant at this late date.

Finally, the Court notes that in his notice of motion, claimant makes reference to 10 (6) of the Court of Claims Act, which governs the granting of late claim relief. Although claimant referenced 10 (6) in his notice of motion, claimant did not address any of the six statutory factors under 10 (6) which must be considered by the Court in any late claim application.

Additionally, a late claim application may only be considered by a Court if the application is made "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." In this particular matter, it is readily apparent that the allegations of medical malpractice asserted by the claimant occurred in the years 2001-2002, and therefore any late claim application is clearly barred by CPLR  214-a, which requires that any action for medical malpractice must be commenced within two years and six months of accrual. It appears to this Court that claimant may have been well aware of his inability to institute a timely late claim application, and this motion to "supplement" his original claim was an attempt solely to circumvent the requirements of 10 (6). Such an attempt will not be countenanced by this Court.

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-78742 is hereby DENIED.

December 2, 2010

Syracuse, New York


Judge of the Court of Claims