Opinion
# 2015-010-017 Claim No. 123876 Motion No. M-86294
03-18-2015
PEDRO COLLAZO v. THE STATE OF NEW YORK
PEDRO COLLAZO Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General
Synopsis
Claimant's motion to amend his claim DENIED, proposed amendment lacking in merit.
Case information
UID: | 2015-010-017 |
Claimant(s): | PEDRO COLLAZO |
Claimant short name: | COLLAZO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 123876 |
Motion number(s): | M-86294 |
Cross-motion number(s): | |
Judge: | Terry Jane Ruderman |
Claimant's attorney: | PEDRO COLLAZO Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 18, 2015 |
City: | White Plains |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on claimant's motion to amend his claim:
Notice of Motion, Claimant's Supporting Affidavit and exhibits..............................1
Defendant's Affirmation in Opposition....................................................................2
This claim arises during claimant's incarceration at Sing Sing Correctional Facility. The claim alleges that in September 2013, claimant developed ear infections due to water in his ears. The water was drained from claimant's ears and he was prescribed antibiotics and earplugs to prevent water from entering his ears. Claimant was not given the earplugs and on January 27, 2014, he was diagnosed with an ear infection in both ears due to water in his ears. The claim alleges that defendant was negligent in failing to provide claimant with earplugs to prevent water from entering his ears and that this failure caused him to get an infection. The claim was served on January 31, 2014 and filed on February 3, 2014.
By this Court's Decision and Order filed-stamped October 6, 2014 (Collazo v State of New York, UID No. 2014-010-050 [Ct Cl, Ruderman, J., Aug. 28, 2014]), claimant's motion for summary judgment was denied.
Claimant seeks leave to amend his claim to allege that on October 24, 2014, the alternative of a shower cap was recommended by an ear, nose and throat specialist; however, claimant was not provided with a shower cap until January 15, 2015 (Claimant's Exs. A, B). Claimant seeks to allege that defendant's three-month delay in providing the shower cap caused him pain and suffering. The Court notes, however, that the proposed amended claim fails to allege any damages or suffering that post-dates defendant's alleged negligence in failing to provide claimant with a shower cap. Thus, the proposed amended claim fails to state a cause of action linking defendant's alleged negligence to any alleged injury.
While leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]), leave to amend is properly denied where the moving party fails to make some evidentiary showing that the proposed amendment has merit (see Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [3d Dept 2010]; Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]). Here, claimant has not made a sufficient showing to warrant granting his application. Indeed, he has not even alleged with sufficient specificity that defendant's purported negligence resulted in an articulated injury.
Accordingly, claimant's motion to amend his claim is DENIED.
March 18, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims