Opinion
# 2019-028-553 Claim No. 122111 Motion No. M-93157 Motion No. M-93184
06-20-2019
THOMAS WILLIAMS v. THE STATE OF NEW YORK
THOMAS WILLIAMS, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-553 |
| Claimant(s): | THOMAS WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122111 |
| Motion number(s): | M-93157, M-93184 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | THOMAS WILLIAMS, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the pending motions:
1,2 Notice of Motion [M-93157], Affidavit in Support of Motion to Amend and Increase Monetary Damages by Thomas Williams, Claimant;
3 Notice of Motion [M-93184] to Reopen Discovery Demand Pursuant to CPLR §3120(A) by Thomas Williams, Claimant;
4,5 Defendant's Affirmation in Opposition [M-93157, M-93184] by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached exhibits.
6,7 Filed papers: Claim, Answer
Thomas Williams, an inmate proceeding pro se, alleges that on January 10, 2012 he was caused to slip, fall, and suffer injury in a tunnel walkway at Sing Sing Correctional Facility because of the defendant's failure to properly maintain the area free of dangerous conditions. Specifically, claimant alleges that the walkway was in a state of disrepair, contained potholes and other rough areas. He asserts that as he "reach[ed] the fourth stair case [p]latform....[he] felt his right foot sink downward and his right ankle start to twist as he fell sideways to his right" until other inmates braced his fall. [Claim No. 122111, ¶¶7,8]. He seeks damages in the amount of $100,000.00 against the State of New York, for his injury, pain and suffering.
Issue has been joined in this matter since service of an answer on January 9, 2013. There have been multiple discovery motions, discovery has been produced, and there was also a determination as to the employee witnesses claimant may call, to be produced by defendant on the trial of the matter without the necessity of a subpoena. [See Williams v State of New York, Claim No. 122111, Motion No. M-91653, unreported (Ct Cl, Scuccimarra, J., May 30, 2018); Williams v State of New York, UID No. 2014-010-012 (Ct Cl, Ruderman, J., Jan. 22, 2014); Williams v State of New York, UID No. 2013-010-031 (Ct Cl, Ruderman, J., July 22, 2013)].
In two new motions, claimant seeks (1) to amend the damnum clause to increase the amount of damages he seeks from $100,000.00 to $500,000.00 and (2) to "reopen" discovery. Defendant has opposed both motions in one set of papers filed in opposition. Motion to Amend [M- 93157]
A pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) Civil Practice Law and Rules. See, 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency. A copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that "...unequivocally make out a prima facie basis for the claim...or other matter sought to be added...." [Commentary C3025:11; § 3025 Civil Practice Law and Rules].
"A motion to increase the ad damnum clause based on a claim of increased injuries must be supported by a twofold showing. First, the motion must be accompanied by an affidavit by the plaintiff 'showing the merits of the case, the reasons for the delay, and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff[s] and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff[s]' ...(citations omitted). Second, the motion must be accompanied by a doctor's affidavit or affirmation showing a causal connection between the injury and a consistent course of treatment for the accident-caused injuries....(citation omitted)." Lopez v Alexander, 251 AD2d 297 (2d Dept 1998).
This claim is one for personal injuries allegedly suffered in 2012. In the affidavit submitted in support of this motion, claimant avers that the injury to his right foot and ankle caused by the defendant's negligence has become worse, and that the monetary damages should be increased accordingly.
Defendant argues that claimant has failed to make any evidentiary showing of the merit of his proposed amendment other than his own self-serving statements and opinion. [Feinberg Memorandum of Law, Pages 3 - 4].
With regard to personal injury claims, the requirement to include the "total sum" in the prayer for relief in a claim was eliminated effective August 15, 2007. See Court of Claims Act §11(b). Additionally, there are no reasons presented as to why the figure should be increased, based upon some new facts or information coming to Mr. Williams' attention. If what claimant is trying to say is that he has a continuing injury, for example, that has necessitated additional care causally related to the original fall, then some supporting information, such as a physician's affirmation or affidavit should have accompanied the motion. See Muneeb v Qi-Xiong Cen, 303 AD2d 661 (2d Dept 2003); Lopez v Alexander, supra. Finally, depending upon the facts adduced at trial, increasing the dollar amount demanded is readily the subject of a trial motion to conform the pleadings to the proof [See Civil Practice Law and Rules §3025(c)].
Where as here, it would essentially be immaterial to increase the dollar amount demanded, no reason is advanced, and the motion is not supported by appropriate affidavits, it should be denied for legal insufficiency.
Based on the foregoing, claimant's motion to amend the claim to increase the amount demanded therein is in all respects denied. Motion to Reopen Discovery [M-93184]
Civil Practice Law and Rules §3101, setting forth the scope of disclosure, provides in pertinent part that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of any action, regardless of the burden of proof...."
When a party fails to respond in some fashion to a duly served demand, the other party may make a motion to compel. Civil Practice Law and Rules §§3124, 3126.
Although reference is made to an attached affidavit in support of the present motion, no such affidavit has been filed with the Court (nor does defendant appear to have been served with other than the Notice of Motion as well). [Feinberg Affirmation, Exhibit A]. In any event, claimant did not serve any actual discovery demand upon the defendant prior to seeking judicial relief. [Feinberg Affirmation, ¶¶2, 4]. When a party makes a motion, he should provide the court with all the relevant documents it will need to make a determination. Civil Practice Law and Rules §2214(c).
Claimant has not demonstrated that he has served any discovery demand or request on defendant, has not demonstrated that he has made any good faith effort to proceed with consent disclosure, prior to seeking judicial intervention, thus the motion is denied as premature, in addition to not being appropriately supported by affidavit. See e.g. Dorcinvil v State of New York, UID No. 2018-038-564 (Ct Cl, DeBow, J., June 27, 2018).
Moreover, the Court cannot help but note that claimant has already been provided with maintenance records and other material and relevant document disclosure, and has obtained a ruling as to witnesses, yet he appears to continue to seek evidence of post accident repairs without providing any rationale for production of same.
See prior ruling in Williams v State of New York, Claim No. 122111, Motion No. M-91653, unreported (Ct Cl, Scuccimarra, J., May 30, 2018), wherein the Court noted "[c]laimant has not presented any reason why evidence of post accident repairs - not generally available unless under recognized exceptions - should be further provided (some of the work orders and other documents provided during discovery postdate the accident)."
Based on the foregoing, claimants motion to compel discovery is in all respects denied.
June 20, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims