WILLIAMS v. STATE OF NEW YORK, #2007-018-558, Claim No. 109440, Motion Nos. M-72442, CM-72525
Claimant’s motion is granted in its entirety and Defendant’s motion is partially granted - the Note of Issue is stricken.
Claimant’s counsel brought a motion to amend the claim to substitute the name of the
Executrix of Decedent’s estate as Claimant in the caption, to amend the named Defendants, and to add a wrongful death cause of action. Defendant brings a cross-motion to strike the note of issue and certificate of readiness to permit further discovery if Claimant’s counsel’s request to amend the claim to add a wrongful death cause of action is granted. Defendant also seeks to have the scheduled trial date stricken. Claimant’s counsel, in response to Defendant’s cross-motion, indicates that a notice of intention to file a claim for the wrongful death cause of action was served upon Defendant on November 27, 2006, 90 days after the appointment of an Administratrix (Court of Claims Act § 10). As a result, Claimant’s counsel indicates that a new claim will be filed asserting the wrongful death cause of action and the portion of the motion seeking to amend the existing claim to add the wrongful death cause of action is withdrawn because counsel does not want the note of issue and certificate of readiness stricken or the date of trial removed from the Court’s trial calendar.
The Court will grant Claimant’s counsel’s motion. The claim’s caption is amended to reflect as the Claimant, Laura A. Williams, as Executrix of the Estate of Russell S. Williams, and to reflect the State of New York as the only Defendant (see Court of Claims Act §§ 9 and 15).
The Court also grants Claimant’s counsel’s motion seeking to amend the filed claim to add a wrongful death cause of action. Before or after judgment, leave to amend pleadings shall be freely given within the discretion of the trial court, upon such terms as may be just, absent prejudice to the opposing party (CPLR 3025[c]; Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18). In the interest of judicial economy, it is more efficient to amend the existing claim to add the wrongful death cause of action than to have an entirely new claim brought where the issues are inter-related, stem from the same facts and circumstances, and involve most of the same witnesses. Yet, the Court can appreciate Defendant’s position in its cross-motion that additional discovery is necessary. As a result, Defendant’s motion is also partially granted to the extent that the note of issue and certificate of readiness is stricken.
Accordingly, Claimant’s motion is granted in its entirety. Claimant shall file and serve the amended claim attached to her motion papers as Exhibit F, with two modifications, that is reflecting only the “State of New York” as the Defendant, and remove the word, “Individually,” from the caption of the action.2 Filing and service of the amended claim shall occur within 30 days of the date this Decision and Order is filed with the Clerk of this Court. Defendant’s cross-motion is also granted to the extent that the Clerk of the Court is directed to strike the note of issue and certificate of readiness in this matter. The parties are free to pursue additional discovery. The Preliminary Conference Stipulation and Order dated December 14, 2004, is hereby amended to reflect that all discovery on this amended claim shall be completed on or before September 4, 2007, and a note of issue and certificate of readiness shall be filed on or before September 17, 2007. The trial in this matter shall remain scheduled for January 23, 2008,3 as long as the note of issue and certificate of readiness is filed on or before September 17, 2007. In the event the note of issue and certificate of readiness is not filed by that date the trial date will be adjourned.
The Court has considered the following documents in deciding these motions:
Notice of Motion.................................................................................................1
Affidavit of Lauren H. Seiter, Esquire, in support, with exhibits attached