Opinion
# 2017-044-513 Claim No. 128273 Motion No. M-89311 Cross-Motion No. CM-89380
02-09-2017
EARL L. STONE v. THE STATE OF NEW YORK
EARL L. STONE, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Defendant's cross motion to dismiss for failure to serve was withdrawn by defendant after discovering that defendant had actually answered a served claim. Claimant's motion to amend ad damnum granted.
Case information
| UID: | 2017-044-513 |
| Claimant(s): | EARL L. STONE |
| Claimant short name: | STONE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128273 |
| Motion number(s): | M-89311 |
| Cross-motion number(s): | CM-89380 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | EARL L. STONE, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 9, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim for dental malpractice based upon the allegedly negligent treatment he received while he was in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility. Claimant now moves to amend the claim to increase his amount of damages.
Assistant Attorney General (AAG) Douglas H. Squire initially opposed this motion on behalf of defendant and cross-moved (Cross Motion No. CM-89380) to dismiss the claim based upon an alleged failure to serve either the claim or a notice of intention to file a claim. In support of the cross motion, defendant provided an affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General (the AG's Office). Mantell stated that she searched both the electronic database and paper files in the Claims Bureau by claimant's name and negligent medical treatment and found: 1) a letter from the Clerk of the Court which indicates that a claim was filed on July 26, 2016; 2) a document entitled motion to amend claim; and 3) a letter from the Clerk of the Court advising that the motion was returnable on October 26, 2016. These three documents were all assigned reference number OAG # 16-210046-O. However, Mantell stated that there was no record that claimant ever served a claim or a notice of intention on the AG's Office.
Claimant opposed Cross Motion No. CM-89380, arguing that defendant had clearly been served with both the claim and a notice of intention, as indicated by the fact that the State filed and served an answer to the claim (in which it also admitted service of a notice of intention). In response, AAG Squire investigated the matter and discovered that the AG's Office had opened two files for this matter, assigning one to the Albany Office and one to the Binghamton Office. AAG Squire advised the Court that AAG Joan Matalavage in the Albany Office had received the claim and submitted a Verified Answer. AAG Squire has also withdrawn Cross Motion No. CM-89380 and any opposition to the motion.
During the past six months, this Court has encountered two other instances where defendant has moved to dismiss claims on the ground that the State was never served, but ultimately it was established that the State had in fact been properly served (Mineo v State of New York, UID No. 2016-044-549 [Ct Cl, Schaewe, J., July 26, 2016]; and Galunas v State of New York, UID No. 2016-044-567 [Ct Cl, Schaewe, J., Dec. 14, 2016]). In both instances, as here, an affidavit was submitted to the Court stating that a search of the AG's database found no evidence that a claim had been served. In Mineo (UID No. 2016-044-549), the claimant provided defendant with a copy of an answer served by the AG's Office. In Galunas (UID No. 2016-044-567), the claimant provided conclusive evidence that he had properly mailed both a notice of intention and a claim which were received by the AG's Office. In the latter instance, the State had not answered the claim and was held in default (id.).
Using the certified mail article numbers, the AG's Office was able to retrieve the documents from their archived files and verified that the documents received by the Office were in fact a notice of intention to file a claim and the claim itself (Galunas, UID No. 2016-044-567 at 2).
While the Court does not believe that the State has intentionally misled the Court in any of these instances, the situation is extremely troubling. Documents received by the AG's Office are not being accurately reflected in the record keeping system, and the AG's Office is accordingly submitting sworn but false information to the Court. Fortunately, the inmate claimants in Mineo (UID No. 2016-044-549), Galunas (UID No. 2016-044-567), and this present claim were all in possession of proof that established defendant's evidence was incorrect and they had properly served defendant. However, inmate claimants' property is frequently lost, in some cases by defendant's negligence in handling their property, resulting in said claimants' inability to provide the necessary proof of service. At some point, the negligence of the AG's Office in its record keeping not only becomes a legitimate situation indicating a pattern of denial of access to the Courts, but also could have the very real potential for the Court to give little credibility to affidavits from the AG's Office regarding the lack of service. Moreover, in cases where the claimant is represented, defendant's conduct could lead to the imposition of sanctions in an amount equal to the cost of opposing its motion to dismiss.
Turning to claimant's motion, CPLR 3025 (b) provides that "[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" (see also Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). The determination of whether to grant leave to amend a pleading is left to the sound discretion of the Court (Krichmar v Krichmar, 42 NY2d 858, 860 [1977]). "It is by now well[-]settled that 'in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted' " (Thomas v Laustrup, 34 AD3d 1115, 1116 [3d Dept 2006], quoting Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]).
In the claim, claimant seeks damages of $10,000.00 each for painful infection, sore gums, inability to chew, throbbing in teeth, headaches, and weight loss (a total amount of $60,000). Claimant has not attached a proposed amended claim to this motion as required by CPLR 3025 (b). However, in his affidavit in support of this motion, claimant repeats all the allegations of the claim, including the six items of damages. He also includes five other items of damages. It is clear that claimant's proposed amendment is to include recovery for the additional items as follows: a second operation, second anesthesia, medication, pain and suffering, and mental anguish. Each of these items also seek $10,000.00 in damages and thus increase the total amount of damages sought to $110,000.00. The Court finds that the failure to include a separate proposed amended claim is not fatal to this motion. Moreover, in light of the limited amendment to increase the ad damnum, the absence of prejudice to defendant (who does not oppose the motion) and the interest of judicial economy (see Antonawich v State of New York, UID No. 2011-045-003 [Ct Cl, Lopez-Summa, J., Feb. 3, 2011]), the Court will allow claimant to increase the total amount of damages (see Bookman v State of New York, UID No. 2013-015-458 [Ct Cl, Collins, J., Dec. 13, 2013]).
Accordingly, claimant's motion is granted solely to the extent that he may file and serve an amended claim increasing the ad damnum from $60,000 to $110,000 as set forth in his affidavit in support of this motion, all within forty days of the date of the filing of this Decision and Order.
February 9, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion and defendant's cross motion: 1) Notice of Motion filed on September 7, 2016; Affidavit of Earl L. Stone, sworn to on August 26, 2016. 2) Notice of Cross Motion filed on October 21, 2016; Affirmation of Douglas H. Squire, AAG, dated October 19, 2016, and attached exhibits. 3) Claimant's "Traverse To Cross Motion" filed on October 27, 2016. 4) Letter of Douglas H. Squire, AAG, to the Court dated November 7, 2016, and attachment. Filed papers: Claim filed on July 26, 2016; Verified Answer filed on August 31, 2016.