Opinion
# 2015-041-015 Claim No. 122840 Motion No. M-85726
02-18-2015
WILLIAM CRENSHAW, 98-B-0745 v. THE STATE OF NEW YORK
WILLIAM CRENSHAW Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Claimant's motion for leave to amend his dental malpractice claim to add a cause of action for failure to obtain his informed written refusal of dental treatment is granted.
Case information
| UID: | 2015-041-015 |
| Claimant(s): | WILLIAM CRENSHAW, 98-B-0745 |
| Claimant short name: | CRENSHAW |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122840 |
| Motion number(s): | M-85726 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | WILLIAM CRENSHAW Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 18, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for leave to amend his dental malpractice claim to add a cause of action against defendant for failure to obtain claimant's informed written refusal of dental treatment in this dental malpractice claim. Defendant opposes the claimant's request.
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]).
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]).
Claimant admits that he refused dental treatment scheduled for him on January 16, 2013 but alleges that defendant, in obtaining execution of claimant's "Refusal of Medical Examination and/or Treatment," failed to advise him of the risks of refusal of treatment and failed to have a witness sign the refusal form. Claimant further alleges that the dental injuries he alleges in his claim were exacerbated by delay in treatment purportedly caused by his alleged refusal of treatment on January 16, 2013.
Accepting, for purposes of determining the motion, that claimant's allegations that defendant failed to follow its own rules in obtaining execution of the "Refusal of Medical Examination and/or Treatment" are true, the amendment is arguably meritorious.
Defendant's opposition papers fail to show that defendant would be prejudiced in defending the new factual allegations of the proposed amended claim.
Claimant's motion is granted. Claimant is ordered to file and serve his amended claim within sixty (60) days of the filing of this Decision and Order.
February 18, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed October 1, 2014;
2. Affidavit of William Crenshaw, sworn to August 13, 2014, and attached exhibits;
3. Affidavit of Joan Matalavage, sworn to December 5, 2014.