New York State Court of Claims

New York State Court of Claims

IRIZARRY v.THE STATE OF NEW YORK, #2000-012-509, Claim No. 101313, Motion No. M-61231


Claimant's motion to amend claim 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):
Cross-motion number(s):

John P. Lane
Claimant's attorney:
Gilbert Irizarry, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
Third-party defendant's attorney:

Signature date:
April 28, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's application for permission to amend the claim:

Notice of Motion, Affidavit, Proposed
Amended Claim, and Exhibits 1

Claim - Answer 2-3

The claim in this action, which was filed on October 28, 1999, purports to set forth three causes of action arising from an assault that occurred August 3, 1999 at Collins Correctional Facility. Claimant alleges that while he was sleeping another inmate attacked him with a weapon made out of a can of beans inside a sock; the assailant was then apprehended by other inmates. Claim, ¶¶ 5, 6. The claim is divided into three "causes of action," each of which alleges a specific act of negligence on the part of the State: the duty officer's failure to heed claimant's initial pleas for help (first cause of action); inadequate lighting in the dormitory at night (second cause of action); and correction official's failure to take proper precautions in light of the assailant's prior history of violent behavior (third cause of action).

By the instant motion, claimant seeks to amend his claim "due to the leaving out of pertinent information that is vital to Claimant properly prosecuting the above-captioned Claim factually and correctly" (affidavit of G. Iziarry, ¶ 4). The Proposed Amended Claim incorporates the following changes:
• abIncorporating allegations that the State had prior knowledge of the assailant's vicious propensities within the first cause of action, rather than designating them a separate cause of action as in the original claim;

• abAdding a statement that the correction officer's post was 14 feet from claimant's housing area;

• abAdding statements that the correction officer was on duty during the 11-8 evening shift and that he did not react in an adequate or professional manner;

• abAdding a statement that the assailant was wearing "a large amount of clothes" when he was apprehended;

• abSubstituting a statement that the assailant was apprehended by "one" other inmate, while several others observed the event, for the original statement that he was apprehended by "several" other inmates;

• abChanging the number of inmates alleged to be housed in the dormitory from 71 to 69;

• abAdding a reference to the dormitory's alleged lack of emergency lights for power failures;

• abAdding reference to the correction officer's flashlight as a source of lighting available to him;
• abAdding reference to the exact date on which the notice of intention to file a claim is said to have been served on the Attorney General.

Although leave to amend is to be "freely given" (CPLR 3025 [b]), the determination of whether it should be permitted is nevertheless left to the sound discretion of the court and should be decided on a case by case basis. Duffy v Bass & D'Allesandro, 245 AD2d 333; Garrison v Clark Mun. Equipment, 239 AD2d 742; Coleman v Chesebro-Whitman Co., 177 Misc 2d 560, on reargument 177 Misc 2d 566. In the instant case, permitting the amendment would not result in surprise or unacceptable prejudice to the defense of the claim, but, on the other hand, it would provide no significant benefit to claimant in prosecuting his action. Most of the additional information that claimant seeks to insert into the claim is factual in nature, and although these facts support and supplement the original pleading, they do not add theories of liability or new grounds for recovery. Information of this sort is more properly included in a bill of particulars, and testimony and other evidence proving these facts would not be precluded in an action tried on the original claim. In addition, the structural change sought by claimant -- reshaping the claim to assert two separate causes of action instead of three -- makes no difference to either prosecution or defense of the action, for the same three negligent acts are asserted.

In the Court's view, therefore, there is little or nothing to be gained if the proposed amendment were permitted, and the very process of amendment -- claimant's filing and serving the amended claim and defendant's drafting, filing and serving a new responsive pleading – could be seen as involving an unnecessary and fruitless expenditure of time and effort. In addition, and more significantly, permitting the amendment of this particular claim could create confusion if not outright error.

In its answer, defendant asserted ten affirmative defenses, two of which – the Seventh and Eighth – allege jurisdictional defects, specifically that neither the notice of intention nor the claim were served in accordance with the requirements of section 11(a) of the Court of Claims Act. Defendant has not moved to dismiss the claim on the ground of improper service, nor has claimant moved to strike these defenses, and consequently the Court can reach no conclusion as to the merit of defendant's allegations. However, if the present motion were granted and the defenses later proved to be valid, the Court would have improperly allowed amendment of a jurisdictionally defective claim. See, Acosta v State of New York, __ AD2d __, 704 NYS2d 594. Filing and service of the amended claim would not cure a fatal jurisdictional defect of this nature. 84 NY Jur. 2d Pleading § 245; Jordan v McCauley, 178 Misc2d 216; Lebensfeld v Tuch, 43 Misc 2d 919.

In this particular situation, therefore, where there is little to be gained by permitting the amendment and where there is reasonable risk that such a ruling would be patently improper, the Court exercises its discretion to deny the motion.


April 28, 2000
Buffalo, New York

Judge of the Court of Claims

[1] The original claim alleges that claimant has suffered stress and physical trauma, that he has difficulty sleeping, that he is being seen by facility mental health professionals, and that he requires glasses as a result of the damage done to his eye.