Opinion
# 2018-015-159 Claim No. 130570 Motion No. M-92341
09-18-2018
JOSE FIGUEROA, 16-A-3651 v. THE STATE OF NEW YORK
Jose Figueroa, Pro Se Honorable Barbara D. Underwood, Attorney General By: Belinda A. Wagner, Esq., Assistant Attorney General
Synopsis
Claimant's motion to amend his claim was granted on consent.
Case information
| UID: | 2018-015-159 |
| Claimant(s): | JOSE FIGUEROA, 16-A-3651 |
| Claimant short name: | FIGUEROA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130570 |
| Motion number(s): | M-92341 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jose Figueroa, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Belinda A. Wagner, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to amend his claim pursuant to CPLR 3025.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for injuries allegedly sustained as the result of DOCCS' failure to properly treat his varicose veins.
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, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it." Here, the time to amend the claim as of right has expired. Nevertheless, CPLR 3025 (b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of the parties." Claimant filed an Amended Claim on August 10, 2018 which, according to his affidavit of service, was served on the Attorney General on August 5, 2018. Although the Amended Claim was filed and served without leave of Court or the consent of defense counsel, defense counsel has now notified the Court that it withdraws its opposition to the motion.
Accordingly, claimant's motion is granted, without opposition, and the Amended Claim filed in the Office of the Chief Clerk of the Court of Claims on August 10, 2018 is deemed the operative pleading in the instant matter.
September 18, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion, dated May 24, 2018;
2. Affidavit in support, sworn to May 28, 2018;
3. Affirmation in Opposition, dated June 13, 2018;
4. Amended Claim, sworn to August 5, 2018, with attachments; 5. Letter from Belinda A. Wagner dated Sept. 6, 2018.