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Court of Claims, October 19, 2010
APPEARANCES OF COUNSEL
Rutberg & Associates, P.C. (Richard Greenblatt of counsel), for claimant. Andrew M. Cuomo, Attorney General (J. Gardner Ryan of counsel), for defendant.
{**30 Misc 3d at 336} OPINION OF THE COURT
Terry Jane Ruderman, J.
Background
In May 2005, claimant was a resident at Hudson River Psychiatric Center, a psychiatric hospital operated by the New York State Office of Mental Health. Claimant had a history of mental illness and, due to her obesity and other physical conditions, she often required the assistance of a wheelchair. On May 21, 2005, claimant entered a shower, unassisted by an aide, and fell, sustaining injuries. On February 23, 2007, claim No. 113362 was filed, alleging that [*2]claimant's fall was attributable to defendant's negligence. Defendant's amended answer, filed-stamped April 23, 2007, asserted a counterclaim for the costs of claimant's care rendered by the New York State Office of Mental Health from May 2005 through April 2007.
A trial on liability was held and, upon submission of post-trial memoranda by the parties, a written decision was rendered on January 29, 2010 and filed-stamped on March 10, 2010. The court found defendant to be 100% liable for claimant's fall, on the theory of negligence, due to defendant's failure to take proper steps to safeguard claimant from entering the shower without the necessary assistance. The court further found that defendant is entitled to recover the costs of services rendered which were not covered by Medicare and which were unrelated to claimant's fall.
Motion to Amend
A trial on damages was scheduled for August 9, 2010; however, claimant's counsel was actually engaged elsewhere and therefore, the trial was adjourned to November 8, 2010. A pretrial conference was held on September 20, 2010. Thereafter, claimant sought leave to amend her claim to assert a cause of action under Public Health Law

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