Opinion
# 2018-032-091 Claim No. 130022 Motion No. M-92570
12-26-2018
KEITH TITUS v. THE STATE OF NEW YORK
Keith Titus, Pro Se Hon. Barbara D. Underwood, Attorney General By: Ray A. Kyles, Assistant Attorney General
Synopsis
Claimant's motion to amend the claim to increase the amount in the ad damnum clause is granted absent a showing that defendant would be prejudiced by the amendment.
Case information
| UID: | 2018-032-091 |
| Claimant(s): | KEITH TITUS |
| Claimant short name: | TITUS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130022 |
| Motion number(s): | M-92570 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Keith Titus, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Ray A. Kyles, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 26, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim on July 24, 2017, seeking damages for injuries sustained when he contracted an infection while using a razor to shave his face at Willard Drug Treatment Campus. Claimant now seeks to file and serve an amended claim increasing the ad damnum clause from $70,000 to $20,000,000. Defendant opposes the motion.
Pursuant to CPLR Rule 3025 (b) and § 206.7 (b) of the Uniform Rules for the Court of Claims, a party may amend a pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of Court. It is well settled that leave to amend a pleading ' "shall be freely given' absent prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b] and Fahey v County of Ontario, 44 NY2d 934, 935 [1978]) or a showing that the proposed amendment plainly lacks merit (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166 [1989]). Generally, a motion to amend the ad damnum clause in a claim should be granted absent prejudice to the defendant (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]; Thomas v Laustrup, 34 AD3d 1115, 1116 [3d Dept. 2006]).
Here, claimant states that he seeks to increase the amount in the ad damnum clause based on recent medical records that indicate that his injuries may be permanent. In support of his motion, claimant attaches medical records from visits that occurred after he filed the claim in this matter. Defendant does not argue that it would be prejudiced if the Court allowed the amendment. Further, the Court finds that the proposed amendment is not patently without merit.
In light of the foregoing, claimant's motion to amend the claim is GRANTED. Claimant is directed to serve and file the proposed amended claim within 30 days of the date that this Decision and Order is filed with the Clerk of the Court. Defendant shall serve and file an amended answer within 30 days of the date of service of the amended claim.
December 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on July 24, 2017. 2. Notice of Motion to Amend Claim, dated July 2, 2018; and Affidavit in Support of Motion, sworn to by claimant on July 1, 2018, with Attachments. 3. Affirmation in Opposition to Motion to Amend Claim, affirmed by Ray A. Kyles, AAG on September 26, 2018.