Opinion
# 2015-018-632 Claim No. 124136 Motion No. M-86671
08-05-2015
WILLIAM MONARCH v. STATE OF NEW YORK
LAW OFFICES OF MITCHELL H. SPINAC By: Rosa Lee Charpentier, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant filed motion to amend claim. Granted regarding negligence cause of action; denied regarding medical malpractice or medical negligence.
Case information
| UID: | 2015-018-632 |
| Claimant(s): | WILLIAM MONARCH |
| Claimant short name: | MONARCH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124136 |
| Motion number(s): | M-86671 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | LAW OFFICES OF MITCHELL H. SPINAC By: Rosa Lee Charpentier, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 5, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking leave to amend his claim, pursuant to CPLR 3025 (b), to include the alleged foreseeability of his original claim and to add a medical malpractice/negligence allegation. Defendant opposes the motion.
On April 4, 2013, a notice of intention to file a claim was served upon Defendant by certified mail. The notice of intention indicates that a claim would be filed for personal injuries sustained on January 6, when Claimant, an inmate, was attacked by a another inmate who was a member of a gang, in the first floor bathroom of C Block at Watertown Correctional Facility, approximately 25 feet away from a correction officer. On March 28, 2014, Claimant filed a claim, pro se, asserting that the State of New York was negligent and breached its duty to Claimant when he suffered serious injuries on January 6, 2013, from a physical attack at Watertown Correctional Facility in the second and then first floor bathrooms by a named inmate, who allegedly was a member of the "Bloods" gang. Claimant alleged that the correction officer on duty at the time was asleep at his post and would not wake up. Claimant alleges that he has suffered permanent injuries as a result of the assault.
By this motion, Claimant seeks to add new allegations arising from the January 6, 2013, attack involving the State's notice of the risk of an attack on Claimant, and actual or constructive knowledge of the correction officer's misconduct in sleeping on the job which increased the risk of an assault on Claimant and placed him in a dangerous situation. Claimant also seeks to add a cause of action for medical malpractice, medical negligence, or intentional tort arising from the State's alleged failure to timely and appropriately provide medical care and treatment for the injuries Claimant sustained in the January 6, 2013 assault.
CPLR 3025 (b) provides that a party may supplement or amend his pleading by setting forth additional or subsequent transactions or occurrences at any time with permission of the Court. The statute provides that "[l]eave shall be freely given upon such terms as may be just . . ." (CPLR 3025 [b]).
Defendant argues that the notice of intention and the filed claim sets forth one cause of action for negligent supervision resulting in Claimant's personal injury from an attack by a fellow inmate; there are no facts, allegations, or references to an issue with his medical care. Defendant argues that Claimant is attempting to "circumvent the filing requirements of the Court of Claims Act sections 10 (3), 10 (3-b) and 11," and it will be prejudiced if the medical malpractice cause of action is permitted to be added by amendment. Defendant also argues the medical malpractice cause of action is untimely and cannot benefit from the relation back doctrine set forth in CPLR 203 (f). Defendant indicates that Claimant has failed to show the potential merit of this cause of action.
The additional allegations as reflected in the proposed amended claim relating to the negligent supervision cause of action arising from the assault upon Claimant on January 6, 2013 will be permitted, as these relate to the facts set forth in the notice of intention and filed claim, and Defendant will not be prejudiced by the amendment. The amendment relating to the medical malpractice, medical negligence cause of action requires closer review.
Highlighted changes noted in paragraph (1) and (6), and the additional attachments identified in paragraphs (11) and (15).
It is an abuse of discretion, as a matter of law, to deny permission to amend a pleading where the amendment has merit and Defendant has not shown prejudice or surprise resulting directly from the delay in asserting the proposed amendment (Fahey v County of Ontario, 44 NY2d 934 [1978]). What constitutes prejudice requires looking back to the omission at the time of the original pleading to see if there is some loss of a right, change of position, or significant obstacle or expense which could have been avoided by a prompt assertion of the proposed amendment (see Carp v Marcus, 138 AD2d 775 [3d Dept 1988] [unavailability of material witness may result in denial of amendment unless other accommodations can be made] see also Edenwald Contr. Co. v City of New York,60 NY2d 957 [1983] [inability to locate potential former employee witness prejudicial, but city provided additional information to help locate so amendment permitted]). Even a cause of action that is untimely at the time the motion to amend is made, may be permitted if the previously filed pleading provided the opposing party with notice of the potential proposed cause of action (Bilhorn v Farlow, 60 AD2d 755 [4th Dept 1977]). CPLR section 203 (f) specifically permits a claim asserted in an amended pleading to be "deemed" interposed at the time of the original pleading as long as the original pleading provided "notice of the transaction, occurrences or series of transactions or occurrences to be proved pursuant to the amended pleading." (CPLR 203 [f]). The requirement for the statutory notice and the statutory relation back of the new cause of action to the time of the earlier claim permits compliance with the jurisdictional constraints for notice and timeliness under the Court of Claims Act (Court of Claims Act §§ 10 [3-a] and 11 [b]; cf., Nelson v State of New York, 67 AD3d 1142, 1143 [3d Dept 2009]).
Here, neither the notice of intention or the claim makes reference to any issue with Claimant's medical treatment or care. Additionally, the dates of the alleged wrongdoing relate to the medical care and treatment after the referenced assault on January 6, 2013. Although Claimant mentioned his injuries and that he had some treatment in the original claim, there was not even the slightest indication there was any problem with his medical care but, instead, the references supported the significant injuries he suffered from the assault. Thus, the previously served and filed documents did not provide any notice of Claimant's proposed amended medical malpractice and medical negligence cause of action, which is independent of his claim for negligent supervision (see Fazio Masonry, Inc. v Barry, Bette & Led Duke, Inc., 23 AD3d 748 [3d Dept 2005]; compare Lawless v City of Buffalo,177 AD2d 1007 [4th Dept 1991]).
Without notice of the proposed amended medical malpractice or medical negligence cause of action, it cannot be deemed to have been interposed at the time of the previously served notice of intention or filed claim and is therefore untimely (Nelson, 67 AD3d at 1143; Bookman v State of New York, UID No. 2013-015-458 [Ct Cl, Collins, J., Dec. 13, 2013]). As a result, Claimant's motion is denied for this cause of action, although Claimant may still have a timely late claim application (see Court of Claims Act § 10 [6]).
Accordingly Claimant's motion is granted in part and denied in part as set forth above. Claimant is directed to serve and file the proposed amended claim relating solely to the negligent supervision cause of action within 30 days of the date this Decision and Order is filed with the Clerk of the Court. Defendant shall thereafter have 30 days to file and serve an amended answer.
August 5, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Rosa Lee Charpentier, Esquire, in support, with exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto. 4) Reply Affirmation of Rosa Lee Charpentier, Esquire, in support.