Opinion
# 2019-028-569 Claim No. 128473 Motion No. M-93526
08-16-2019
VALERY LATOUCHE v. THE STATE OF NEW YORK
VALERY LATOUCHE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General and Joseph E. Scolavino, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-569 |
| Claimant(s): | VALERY LATOUCHE |
| Claimant short name: | LATOUCHE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128473 |
| Motion number(s): | M-93526 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | VALERY LATOUCHE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General and Joseph E. Scolavino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 16, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Papers Considered:
1-3 Claimant's Notice of Motion to Amend Pleadings, Affidavit in Support of Motion to Amend Pleadings and Affidavit of Service;
4-6 Defendant's Affirmation in Opposition to Claimant's Motion to Amend, Memorandum of Law and exhibits.
Claimant Valery LaTouche, an inmate proceeding pro se, seeks to hold defendant State of New York liable for monetary damages for injuries he sustained as the result of alleged dental malpractice that took place when he was housed in Sing Sing Correctional Facility.
Claimant now moves for leave to amend the claim. The proposed amendments would: 1) adjust the ad damnum clause to reflect separate categories for general and special damages, and increase the sum sought; 2) amplify and clarify facts in the original pleading; and 3) add a cause of action for breach of contract. Claimant attaches a copy of the proposed amended pleading.
Defendant opposes claimant's application on the ground that the proposed amended cause of action for breach of contract lacks merit and is time-barred by the Court of Claims Act.
Pursuant to CPLR 3025 (b), leave to amend or supplement a pleading "should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from the delay in seeking the amendment" (D'Angelo v State Ins. Fund, 48 AD3d 400, 402 [2d Dept 2008]; see also 22 NYCCR 206.7 [b]).
The Court has reviewed the proposed amended pleading, much of which consists of amplification of the facts alleged in the prior pleading, and a breakdown and increase of the sum sought in the ad damnum clause.
With respect to claimant's motion to amend the ad damnum clause, it is well settled that absent prejudice to defendant, a motion for leave to amend the ad damnum clause should be granted (see Miller v United Rentals Aerial Equip., 303 AD2d 471, 472 [2d Dept 2003]; see also Titus v State of New York, UID No. 2018-032-091 [Ct Cl, Hard, J., Dec. 28, 2018] [granting motion to amend ad damnum clause]). The Court perceives no prejudice and the State has not indicated how it would be prejudiced by this amendment.
In regard to claimant's request to amend his claim in order to clarify and amplify the allegations in the original claim, defendant does not argue that this proposed amendment would cause it to suffer prejudice or unfair surprise (see e.g. Hunter v State of New York, UID No. 2007-015-163 [Ct Cl, Collins, J., Mar. 26, 2007] [leave to amend granted to amplify allegations in the original claim]).
However, the new theory of liability alleging breach of contract, goes beyond the mere amplification of the pleadings, constituting a new, distinct, and independent theory of liability that would "impermissibly expand the scope of the original proceeding" (Barnes v State of New York, UID No. 2017-038-527 [Ct Cl, DeBow, J., Mar. 28, 2017], quoting Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]). Moreover, the time to bring a cause of action for breach of contract is beyond the statutory time period provided by Court of Claims Act § 10 (4).
In addition, claimant fails to identify the formation of a contract between the parties, that claimant performed, that defendant failed to perform, and that claimant suffered damages as a consequence, all of which are elements that are required when pleading a breach of contract claim (see Clearmont Prop., LLC v Eisner, 58 AD3d 1052 [3d Dept 2009]). The Court, therefore, finds that the proposed cause of action for breach of contract is devoid of merit (see Waddell v Boyce Thompson Inst. for Plant Research, Inc., 92 AD3d 1172, 1174 [3d Dept 2012]; see also Goonewardena v City University of New York, UID No. 2010-016-008 [Ct Cl, Marin, J., Mar. 15, 2010] [denying amendment to add breach of contract cause of action]).
Accordingly, it is
ORDERED that motion no. M-93526 is GRANTED IN PART, to the extent claimant is permitted to file and serve a verified amended claim in the form of the proposed amended pleading attached to the motion papers herein, but omit any references to a breach of contract cause of action from the amended pleading; and it is further
ORDERED, that claimant shall file and serve the verified amended claim within thirty (30) days of the date of filing of this decision and order, and it is further
ORDERED, that defendant shall file and serve its answer to the verified amended claim within thirty (30) days of service of the verified amended claim.
August 16, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims