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Bell v. State

New York State Court of Claims
Mar 31, 2015
# 2015-032-117 (N.Y. Ct. Cl. Mar. 31, 2015)

Opinion

# 2015-032-117 Claim No. 117674-A Motion No. M-85788

03-31-2015

PAUL BELL v. THE STATE OF NEW YORK

Paul Bell, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel


Synopsis

Case information

UID:

2015-032-117

Claimant(s):

PAUL BELL

Claimant short name:

BELL

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

117674-A

Motion number(s):

M-85788

Cross-motion number(s):

Judge:

JUDITH A. HARD

Claimant's attorney:

Paul Bell, Pro Se

Defendant's attorney:

Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel

Third-party defendant's attorney:

Signature date:

March 31, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves this Court for an order allowing him to file an amended claim. Defendant opposes the motion on the basis that the proposed amended claim does not add any new causes of action, theories of liability or necessary facts, and is jurisdictionally defective. The Court agrees and for the reasons set forth below denies claimant's motion.

The underlying claim alleges that on August 2, 2008, claimant injured his thumb, index finger, forearm and bicep of his right hand and arm, and that defendant, by its agents, servants, and employees, was negligent and careless in failing to properly and promptly diagnose and treat said injuries. The claim alleges that a result of defendant's negligence and carelessness, claimant has suffered from a significant deterioration of his bicep muscle and the use of donor tendons, and further, that he has been caused to suffer a permanent injury which has caused him great pain.

Claimant seeks to amend his claim to allege that since filing his original claim, he had a second surgery which was a failure and that further surgical intervention will be required in the future. He further seeks to increase the amount of damages alleged.

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]). To defeat a motion to amend a claim, the opponent of the motion must show that it would be "significantly prejudiced" by the amendment (Garrison v Clark Mun. Equip., 239 AD2d 742 [3d Dept 1997]). The opposing party must show that it has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position (see Garrison v Clark Mun. Equip., 239 AD2d at 742-743; Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]). Where an action has been certified as ready for trial, judicial discretion in permitting the amendment should be exercised only in the most "discreet, circumspect, prudent and cautious" of circumstances (see Yavorski v Dewell, 288 AD2d 545, 546 [3d Dept 2001], quoting Thompson v Connor, 178 AD2d 752, 753 [3d Dept 1991], lv denied 80 NY2d 826 [1992]).

The Court agrees with defendant that the proposed amended claim does not set forth a new cause of action, theory of liability or necessary facts, and instead alleges only additional components of damages which may be presented at trial. In addition, the proposed amended claim fails to set forth the time when and place where the claim accrued, which is a jurisdictional requirement pursuant to Court of Claims Act § 11 (b).

Based upon the foregoing, claimant's motion to file an amended claim (Motion No. M-85788) is denied.

March 31, 2015

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to File an Amended Claim, sworn to by claimant on August 10, 2014; Affidavit in Support of Motion to File an Amended Claim, sworn to by claimant on August 10, 2014; and proposed Amended Claim.

2. Affirmation in Opposition to Claimant's Motion to Serve Amended Claim, affirmed by Douglas R. Kemp, AAG, on November 3, 2014.

3. Notice of Motion to File Affirmation in Reply to Defendant's Opposition, sworn to by claimant on December 3, 2014; Affidavit in Support of Affirmation in Reply to the Defendant's Opposition, sworn to by claimant on December 3, 2014; and Claimant's Affirmation in Reply to Defendant's Opposition to Claimant's Motion to Serve Amended Claim, sworn to by claimant on November 28, 2014, with attachments.

Papers Considered: Claim, filed November 12, 2009; Answer, filed December 22, 2009; and Decision and Order, filed September 26, 2014.


Summaries of

Bell v. State

New York State Court of Claims
Mar 31, 2015
# 2015-032-117 (N.Y. Ct. Cl. Mar. 31, 2015)
Case details for

Bell v. State

Case Details

Full title:PAUL BELL v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 31, 2015

Citations

# 2015-032-117 (N.Y. Ct. Cl. Mar. 31, 2015)