Motion to Amend Claim denied as Claimant failed to comply with CPLR 3025(b).
|Claimant short name:||TORRES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Ivan Torres, 02A0167, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 14, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the Motion of Claimant, Ivan Torres, appearing pro se, to amend his Claim is denied without prejudice to renewal.
This pro se Claim was filed in the office of the Clerk of the Court on February 11, 2016 and an Amended Claim was filed on April 21, 2016. The Amended Claim alleges that, in 2010, while under the care and custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"), Claimant developed a problem with his left wrist and it was determined he needed surgery (Amended Claim, ¶¶ 4, 5). It is asserted that arthroscopic surgery was performed on June 23, 2010 at Mt. Vernon Hospital in Mt. Vernon, New York (id., ¶ 5). The surgery did not resolve the issue with Claimant's wrist, and a second surgical procedure was performed in December 2010 at the same hospital. That time, a portion of Claimant's wrist bone was removed (id., ¶¶ 7, 8). Claimant asserts that, between February 1, 2011 and April 1, 2015, he made numerous complaints to the medical staff at the several DOCCS' facilities where he was housed, regarding the pain he was experiencing in his left wrist, and all the medical staff did was prescribe pain medication (id., ¶¶ 10,11). In April 2015, Claimant asserts he was transferred to Bare Hill Correctional Facility (hereinafter, "Bare Hill") (id., ¶ 12). Claimant states that he complained about his wrist to the medical staff at Bare Hill and he was provided a wrist brace (id., ¶¶ 13, 14). Claimant asserts that he was examined by an orthopaedic surgeon affiliated with Alice Hyde Medical Center in January 2015; that the doctor advised him that his wrist pain was caused by the removal of part of the bone in his wrist and that the only way to cure the pain was to fuse the wrist during a surgical procedure where a metal plate would be affixed to the bone remaining (id., ¶¶ 15, 16, 17). The surgery was performed on November 16, 2015 at Alice Hyde Medical Center (id., ¶ 18). Claimant states that he was in extreme pain after the surgery and, when he spoke to the medical staff at Bare Hill about his condition, all they did was provide him with over-the-counter anti-inflammatory medication (id., ¶¶ 19, 20). Claimant further asserts that his wrist was not immobilized as the doctor intended following surgery, that he advised the Bare Hill medical staff, and he was ignored (id., ¶¶ 21, 22). Finally, in January 2016, Claimant had a follow-up appointment with the surgeon (id., ¶¶ 28, 29) and the doctor determined that the plate he inserted into Claimant's wrist was "broken" and was not immobilizing Claimant's wrist as intended (id., ¶ 29). Claimant had another surgical procedure performed on his wrist on March 16, 2016 to repair the fusion plate (id., ¶ 30). Claimant asserts causes of action for inadequate medical treatment, medical malpractice, and violation of his rights under the United States Constitution and 42 USC § 1983.
CPLR 3025(b) provides that a motion to amend a pleading "shall be accompanied by the proposed amended … pleading clearly showing the changes or additions to be made to the pleading." While Claimant has submitted a proposed Second Amended Claim, he has not clearly shown "the changes or additions to be made to the pleading." In addition, in his affidavit submitted in support of his Motion, Claimant asserts that his status as "medical idle" was removed and he was forced to return to work (Affidavit, ¶ 39). He does not state when this occurred. Instead, he stated that it was approximately "the third month following the surgical procedure" (id., ¶ 36). It is not clear to the Court from the information submitted if this incident is related to the original asserted medical malpractice or if it is a separate and discreet event which would form the basis of a new Claim.
Claimant has not complied with CPLR 3025(b) as he has not included a proposed amended Claim clearly showing the changes or additions to his Claim. Therefore, the Motion to amend is denied without prejudice.
July 14, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's motion to amend the amended Claim:
Notice of Motion, Affidavit
& Exhibit attached 1
Affirmation in Opposition 2
Filed Papers: Claim, Answer, Amended Claim, Answer to Amended Claim