New York State Court of Claims

New York State Court of Claims

HAMILTON v. THE STATE OF NEW YORK, #2001-014-521, Claim No. 99780, Motion No. M-62857


Claimant's motion to amend the claim to allege an exception, pursuant to CPLR 1602(2)(iv), to CPLR Article 16, is granted.

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):

S. Michael Nadel
Claimant's attorney:
Arthur V. Graseck, Jr.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant's motion to amend the claim: Notice of Motion, Affirmation and Exhibit annexed, Memorandum of Law; Affirmation in Opposition; Reply Affirmation.

The claimant has moved to amend the claim, apparently in response to the defendant's Affirmative Defense that the claim is covered by Article 16 of the CPLR. The proposed amended claim (annexed as an Exhibit to the claimant's submission), alleges an exception set forth in CPLR 1602(2)(iv), that the defendant's alleged liability arises from a non delegable duty.

The claim seeks to hold the defendant liable for the conduct of Court Officers which allegedly resulted in an assault on the claimant by "inmates" in a court holding cell. The allegation in the amended claim, if proven, would preclude limitation of the defendant's liability to its equitable share of fault and permit recovery from it of the full amount of any judgment. The defendant opposes the motion on the ground that it is untimely, having been served nearly two years after the claim was filed.

In Morales v County of Nassau, 94 NY2d 218, 224, the Court of Appeals held that an Article 16 exemption which was not ever pleaded, as required by CPLR 1603, may not be raised on appeal. See, also, Cole v Mandell Food Stores, Inc., 93 NY2d 34, 40. The Court in Morales suggested, however, that amendment would have been permissible at the conclusion of the trial, when the defendant requested an apportionment charge. See, Mastroianni v County of Suffolk, 184 Misc 2d 125, 128.

CPLR 3025(b) permits amendment of a pleading, with the Court's permission, at any time. "If there is no prejudice to the other side, leave to amend must be freely given." Siegel, NY Prac §237, at 378 (3d ed). Under the circumstances herein, where a Note of Issue has yet to be filed, amendment of the claim will not result in any prejudice to the defendant, nor has the defendant suggested that it would.

The claimant's motion is granted. The claimant shall serve and file an amended claim, in the form annexed as Exhibit 1 to the Notice of Motion, within 30 days of the date of the filing of this Order.

March 28, 2001
New York, New York

Judge of the Court of Claims