New York State Court of Claims

New York State Court of Claims

DeJESUS v. THE STATE OF NEW YORK, #2000-004-517, Claim No. 102132, Motion Nos. M-61568, M-61829 and M-61834


Claimant's motion M-61834 to increase his ad damnum clause is granted. Claimant's motion M-61568 for poor person relief and M-61829 to amend his Claim are denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61568, M-61829 and M-61834
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 1, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves to amend his Claim (Motion No. M-61829), to increase his ad damnum

clause (Motion No. M-61834) and for poor person relief (Motion No. M-61568).

The following papers were considered by the Court:

Claim, filed March 15, 2000 1

Verified Answer, filed March 31, 2000 2

Notice of Motion, Motion No. M-61568, filed March 15, 2000 3

Order of Judge Susan Phillips Read, filed March 31, 2000 4

Order of Judge Susan Phillips Read, filed April 26, 2000 5

Affirmation of Earl F. Gialanella, AAG, in opposition
to Motion No. M-61568, dated April 27, 2000, filed May 2, 2000 6

"AFFIRMATION LETTER" of Luis DeJesus, in support of
Motion No. M-61568, dated May 2, 2000 7

Notice of Motion "as a right", Motion No. M-61829,
filed June 5, 2000 8

Affidavit of Luis DeJesus, in support of Motion No. M-61829,
sworn to May 30, 2000, with attachments 9

Proposed Amended Claim, sworn to May 30, 2000 10

Notice of Motion to increase the ad damnum clause,
Motion No. M-61834, filed June 5, 2000 11

Affidavit of Luis DeJesus, in support of Motion No. M-61834,
sworn to May 30, 2000 12

Affirmation of Earl F. Gialanella, AAG, in opposition to

Motion Nos. M-61829, M-61834, dated June 19, 2000, filed
June 23, 2000, with attached exhibit 13

"AFFIRMATION" of Luis DeJesus, in support of Motion Nos.

M-61829, M-61834, dated June 21, 2000, filed June 27, 2000,
with attached exhibits 14

The filed Claim recites in pertinent part:

4. This claim is for negligence of the Defendant, its Officers, agents, or employees in their failure to maintain and keep safe, all equipment...within the confines of the Elmira Correctional Facility...

5. At the time and place above mentioned, Claimant...without any contributory actions on his part, was assigned a teacher's aid [sic] prison job and put to work inside the pre-high school Class-room [sic] in the Brockaway School Building in the confines of the Elmira Correction Facility where Claimant, without any contributory actions on his part, fell to the floor while Claimant was sitting on a chair behind his desk...Claimants' [sic] chair collapsed from underneath him.

(Paper No. 1)

The Court will first address the Claimant's motion for Poor Person relief:

Claimant seeks permission to proceed as a poor person pursuant to CPLR § 1101.

The filing fee requirements of Court of Claims Act § 11 - a (1) requires a Claimant seeking poor person status to apply for a reduction in the filing fee pursuant to CPLR 1101 (f) . (Paper No. 4) Claimant applied for such a reduction and the filing fee was set at $15.00. (Paper No. 5)

Other than the filing fee, there are no other costs in the Court of Claims. Thus, the only remaining relief requested and authorized by CPLR § 1102 is the assignment of an attorney.

Such assignment is not an absolute right in civil litigation and the decision to assign counsel lies within the discretion of the Court. The gravamen of the Claim, appears to be personal injuries sustained by Claimant allegedly as a result of the negligence of the State. (Paper No. 1, ¶ 4) The issues presented therein are not so complex as to require counsel and do not involve such fundamental rights so that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see, Matter of Smiley, 36 NY2d 433).

It appears, therefore, that to grant Claimant the status of poor person at this juncture is unwarranted.

The Court notes that the application for poor person status would necessarily be denied in any event since there is no Affidavit of Service attached to the motion papers showing that Claimant served a copy of the motion papers on the Chemung County Attorney, which is required since Claimant was incarcerated at the Elmira Correctional Facility when the Claim accrued.

The Court will next discuss Claimant's motions to amend the allegations in the Claim (M-61829) and to increase the ad damnum clause from $100,000.00 to $1,325,520.00 (M-61834).

In opposition, State's counsel affirms in pertinent part:

2. This affirmation is submitted in response to the subject motions. In one of the motions, the claimant is moving for permission to file an amended claim in two respects. First to allow his claim to allege "negligence per se" as a cause of action, and second to increase his ad damnum clause.

3. The claimant labels his notice of motion as a motion to amend his claim as a matter of right. This is incorrect. The Claim was served on the Office of the Attorney General on March 1, 2000, and the defendant served its Verified Answer on March 29, 2000. The motion to amend was served on the Office of the Attorney General on June 2, 2000, or more than 40 days after service of the Verified Answer or responsive pleading. As such, the only permissible avenue to amend the claim would be through a stipulation or by leave of Court. CPLR § 3025(b); Court of Claims Uniform Rules § 206.7(b).

4. The claim alleges the defendant's negligence in the operation, control, and maintenance of the school buildings within the confines of the Elmira Correctional Facility on September 21, 1998 when the claimant, an inmate working as a teaching assistant, was injured when a chair he was sitting in collapsed causing him to fall to the floor. The claim asks for $100,000.00 in damages.

5. The defendant has no objection to the proposed amendment to the ad damnum clause. However, the defendant opposes any amendment of the claim to add a cause of action for negligence per se. That doctrine is generally applicable when the claimant is alleging a violation of a statute, regulation, or ordinance by the defendant, and through the establishment of such a violation the defendant is absolutely liable or the statutory or regulatory breach constitutes evidence of negligence. 79 NY Jur 2d, § 60-69. The allegations in the claim are straight forward and the claimant has not alleged any violation of a statute, ordinance or regulation by the defendant on which to base a negligence per se theory of recovery. The only issue is whether or not the defendant was negligent in the maintenance of the chair. Negligence per se is not relevant or material to the allegations in the claim and such an amendment is unnecessary.

(Paper No. 13)

Since the State's Answer was served more than 40 days prior to filing of Motion No. M-61829, the time to amend as of right has passed (22 NYCRR 206.7 [b]).

Claimant's motion to amend the Claim to add a cause of action for "negligence per se" is denied. Claimant does not allege any violation by the State of any statute, ordinance, or regulation which is related to or proximately caused the chair to collapse. (cf. Martin v Herzog, 228 NY 164). Without such an allegation, a cause of action for "negligence per se" would be meaningless.

As the State has no objection to the Claimant amending the ad damnum clause, (Paper No. 13, ¶ 5), the Court will grant permission to the Claimant to do so.

While not exactly clear, it appears that there is some controversy concerning the Claimant signing an authorization for release of his medical records. (see, Paper No. 13, ¶ 6)

There is however, no motion before the Court with regard thereto.

In light of the foregoing, it is

ORDERED that the Claimant's Motion Nos. M-61568 and M-61829 are DENIED and

It is further,

ORDERED that Claimant's Motion No. M-61834 is GRANTED and Claimant is directed to serve and file an amended Claim with the ad damnum clause increased from $100,000.00 to $1,325,520.00 (see supra, p 4), in strict compliance with this Decision and Order within 30 days of the filing date thereof.

August 1, 2000
Binghamton, New York

Judge of the Court of Claims