Opinion
# 2018-041-066 Claim No. 128707 Motion No. M-92527
10-09-2018
ANTHONY BARNES v. THE STATE OF NEW YORK
ANTHONY BARNES Pro Se HON. BARBARA D. UNDERWOOD New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claimant's motion for permission to serve and file amended claim is granted.
Case information
| UID: | 2018-041-066 |
| Claimant(s): | ANTHONY BARNES |
| Claimant short name: | BARNES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128707 |
| Motion number(s): | M-92527 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ANTHONY BARNES Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 9, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file and serve an amended claim in this action which alleges, among other things, medical negligence and/or malpractice. The defendant opposes the motion.
CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).
Claimant asserts that the amendments are meritorious and based upon, among other things, "medical records and other documents" obtained by claimant from "claimants medical files" after the service of the original claim. Defendant has not specifically challenged the merit of the proposed amendments.
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]).
Defendant's opposition papers fail to show that defendant would be prejudiced in defending the new factual allegations of the proposed amended claim. Claimant asserts, without contradiction, that the proposed factual allegations in the amended claim relate back to the relevant factual allegations of the claim. As such, they cannot be said to have surprised defendant.
The claimant's motion to serve and file an amended claim is granted.
October 9, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Amend Claim, filed July 9, 2018; 2. Unsworn "Affidavit" of Anthony Barnes, dated June 28, 2018, and attached exhibits; 3. Affirmation in Opposition of Douglas R. Kemp, dated August 6, 2018; 4. Claimant's Response to Affirmation in Opposition, dated August 24, 2018.