Administrator substituted in the caption. Claimants also seeks to add wrongful death claim.
|Claimant(s):||In the Matter of the Claim of KIMBERLY DIXON, Individually, and as Mother and natural guardian of SPD, an infant|
|Claimant short name:||DIXON|
|Footnote (claimant name) :||The caption has been amended, sua sponte, pursuant to 22 NYCRR 206.5 (e).|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Levine & Grossman
By: William T. Burdo, Esq.
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Mary Beth T. Ott, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 20, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion, Claimants' Affirmation with annexed Exhibits A-E and Defendant's Affirmation in Partial Opposition.
Kimberly Dixon moves as limited administrator of the estate of SPD to amend the claim pursuant to CPLR 3025 (b) to add a cause of action for wrongful death, to substitute herself as administrator of the estate of the deceased claimant, SPD, pursuant to CPLR 1015, to amend the claim to reflect her substitution and to lift the stay of this action. Defendant, the State of New York, takes no position with respect to the amendment of the caption but opposes the addition of the wrongful death cause of action.
The original claim in this matter alleging medical malpractice against the State of New York was filed on February 16, 2016. SPD died on October 18, 2017 and Kimberly Dixon was appointed as limited administrator of his estate. She was issued limited letters of administration on December 28 2017. The present motion was originally filed on February 8, 2018.
Pursuant to Court of Claims Act § 15 and CPLR § 1015, the Court grants that portion of the motion which seeks to substitute Kimberly Dixon as claimant in her capacity as limited administrator of the estate of SPD, in place and instead of the deceased claimant, SPD. The caption is hereby amended accordingly.
In regard to claimants' motion to add a cause of action for wrongful death, EPTL § 11-3.3 (b) (2) provides that "[w]here an action to recover damages for personal injury has been brought, and the injured person dies, as a result of the injury, . . . his personal representative may enlarge the complaint in such action to include the cause of action for wrongful death under 5-4.1." "By this provision the Legislature has given the personal representative the right, if an action has already been brought for conscious pain and suffering, to join the related cause of action for wrongful death." (Caffaro v Trayna, 35 NY2d 245 ).
Additionally, CPLR 3025 states in pertinent part that a party may amend his or her pleading by setting forth additional or subsequent occurrences at any time by leave of court or by stipulation of all parties. Generally, leave should be freely given upon such terms as may be just. The relevant considerations are simply whether the original claim gave defendant notice of the transactions or occurrences at issue and whether there would be undue prejudice to defendant if amendment and relation back are permitted (O'Halloran v Metropolitan Transp. Auth., 154 AD3d 83, 87 [2d Dept 2017]; Caffaro v Trayna, 35 NY2d 245 ; CPLR 203 [f]). "A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave to amend will be granted unless such sufficiency or lack of merit is free and clear from doubt" (Assevero v Hamilton & Church Props., LLC, 154 AD3d 728 [2d Dept 2017]). "The court need only determine whether the proposed amendment is 'palpably insufficient' to state a cause of action or defense, or is patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept 2008]).
The original claim gave defendant notice of the underlying transactions and occurrences upon which the wrongful death cause of action in the amended claim is based. Additionally, the motion to amend the claim was filed on February 8, 2018, forty-two days after the administrator was appointed in this case. Finally, the Court directs claimants to attach the death certificate, Exhibit C, as an addendum to the amended claim prior to serving and filing the amended claim. Thus, the Court finds that the proposed amendment to the claim is not palpably insufficient and that its inclusion in the claim would not unduly prejudice defendant.
Therefore, for the foregoing reasons, claimants' motion is granted in its entirety. Claimants are directed to serve and file the amended claim together with the addendum, the death certificate, as one document, within forty-five days of the date this Decision and Order is filed with the Clerk of the Court.
June 20, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims