Motion to supplement claim denied in the absence of a proposed supplemental amended claim that complies with CPLR 3025 (b).
|Claimant short name:||GAJADHAR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||WINSTON GAJADHAR, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: No Appearance
|Third-party defendant's attorney:|
|Signature date:||July 30, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that defendant's agents at Green Haven Correctional Facility failed to provide him with adequate medical care from May 29, 2010 through April 5, 2012. Claimant moves to supplement the claim. Defendant has not submitted any papers on the motion.
CPLR 3025 (b) provides in pertinent part that "[a] party may amend his . . . pleading, or supplement it by setting forth additional or subsequent transactions or occurrences . . .". Leave to amend a claim 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]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]). Whether to grant such relief is a matter within the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]).
The claim alleges that claimant suffered a tear of the medial meniscus of his right knee on May 29, 2010 and that he was denied corrective surgery in 2010. It further alleges that claimant was sent to an outside hospital for an MRI and he was diagnosed on December 28, 2010 with damage to his medial meniscus that could not be treated due to the lack of medical treatment. The claim asserts that he was denied medical treatment for his knee injury from May 29, 2010 through April 5, 2012.
In support of his motion to supplement, claimant submits a document entitled "Notice of Supplemental Pleadings," which is a document separate and distinct from the filed claim and which contains arguments regarding the continuous treatment doctrine and the apparent necessity for the supplemental pleading. The document contains eleven proposed causes of action that make certain factual allegations and statements of law. Specifically, in the introductory paragraphs the document asserts that the continuous treatment doctrine applies, and it refers to an injury to claimant's knee that allegedly occurred on November 13, 2010 which required immediate surgery and that claimant had surgery on his knee on March 25, 2011. Contained within the eleven causes of action are allegations that claimant underwent subsequent surgeries, including a knee replacement, received medical treatment on different dates in 2012, 2014 and 2017, that claimant is scheduled for further medical care in 2019 and received mental health counseling on unspecified dates, and that defendant has a duty to provide inmates with prompt, adequate and necessary medical care.
The motion will be denied without prejudice to a subsequent motion that complies with CPLR 3025 (b), which provides in part that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed or amended supplemental pleading clearly showing the changes or additions to be made to the pleading." The document submitted by claimant does not clearly show what parts of this document are intended to amend or supplement the claim, as compared to which parts of the document serve as argument in support of the instant motion. The proper procedure is to submit one proposed amended or supplemental pleading that includes the allegations in the initial claim that claimant intends to retain, and also includes the amended or supplemental allegations that can be discerned as changes or additions to the original claim.
Accordingly, it is
ORDERED, that claimant's motion number M-92397 is DENIED without prejudice to a subsequent motion to amend or supplement that complies with CPLR 3025 (b).
July 30, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 121461, filed June 25, 2012;
(2) Affidavit of Winston Gajadhar in Support of Motion to Supplement, sworn to May 21, 2018;
(3) Correspondence of Nancy Schulman, Principal Law Clerk, dated May 29, 2018;
(4) Correspondence of Winston Gajadhar, dated May 31, 2018;
(5) Affidavit of Service of Winston Gajadhar, sworn to June 1, 2018;