New York State Court of Claims

New York State Court of Claims

FERRAN v. THE STATE OF NEW YORK, #2001-028-555, Claim No. 103026, Motion No. M-63513


Claimants application to amend their claim to add facts supporting a cause of action for malicious prosecution is granted on the authority of Mastandrea v State of New York, 57 AD2d 679.

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):

Claimant's attorney:
Defendant's attorney:
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 20, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants' motion to amend the Claim:

  1. Notice of Motion and Affidavit of Nadia Ferran, filed May 15, 2001, (Ferran Affidavit) with annexed Exhibits A-B and proposed Amended Claim;
  1. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino filed June 1, 2001 (Cagino Affirmation).

FILED PAPERS: Claim, filed September 1, 2000; Answer, filed September 20, 2000.

This Claim arises from the alleged unlawful arrest of Claimant Mark Ferran on June 4, 2000 by New York State Troopers following an incident that is alleged to have occurred on property owned by Claimant Nadia Ferran.

A preliminary conference was conducted on the record regarding this claim on March 19, 2001 following which the Court issued a Daily Report directing, inter alia, that Claimants file and serve their motion to amend the Claim on or before April 16, 2001 (Ferran Affidavit ¶4). Thereafter, Claimants requested additional time to comply with the Court's earlier Order and the Court issued a Daily Report (Ferran Affidavit, Exhibit B) which directed Claimants to file the motion to amend their Claim on or before May 15, 2001. The reason proffered for the amendment is that the underlying criminal action has allegedly terminated favorably for one of the claimants and the Claim needed clarification (Ferran Affidavit, ¶ 3).[1] Defendant opposes the application essentially because it is inartfully pleaded and lacks merit (Cagino Affirmation , ¶¶ 3, 4 and 7).

Initially, the Court agrees with Defendant's observation that Claimants should comply with the pleading requirements of the CPLR by numbering the paragraphs of their submissions and by providing plain and concise statements (see, CPLR §§ 3013, 3014). However, that is not a reason for the Court to deny the application for leave to amend the Claim.

A pleading in the Court of Claims may be amended in the manner provided by CPLR 3025. (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend a pleading should be freely given although the determination is directed to the sound discretion of the Court. (Siegel, NY Prac § 237, at 378 [3rd ed]). Factors to be considered in determining whether to allow amendment of a pleading are whether there would be any prejudice to the opposing party; the effect, if any, that amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Gonfiantini v Zino, 184 AD2d 368, 370; Harding v Filancia, 144 AD2d 538, 539; White v State of New York, 161 Misc 2d 938).

In the absence of prejudice or surprise, neither of which were alleged by the defendant in opposition to claimants' motion, leave to amend a pleading should be granted unless the proposed amendment is clearly and patently insufficient on its face (see, Williams v Ludlow's Sand & Gravel Co., 122 AD2d 612). The State's general argument, that the proposed amended claim lacks merit (Cagino Affirmation, ¶ 4), is itself without merit.

Accordingly, Claimants' motion to amend their Claim to include facts supporting a cause of action for malicious prosecution (see, Mastandrea v State of New York, 57 AD2d 679) is granted.

Claimants shall file an original, verified amended claim containing the same allegations set forth in the proposed amended claim (with each separate paragraph numbered) attached to their notice of motion with the Clerk of the Court and shall serve a copy of it upon the office of the Attorney General personally or by certified mail return receipt requested within 20 days of the date of filing of this decision and order. Claimants shall delete from the caption all defendants other than the State of New York.[2] The defendant shall have 30 days thereafter to file and serve an amended answer.

August 20, 2001
Albany, New York

Judge of the Court of Claims

[1] The Court has carefully reviewed the Claim and proposed amended Claim, each of which allege false arrest, false imprisonment and malicious prosecution, and finds the only difference is that the amended claim includes two paragraphs which allege the events leading up to the dismissal of the criminal charges against Claimant, Mark Ferran.
[2] The Court, sua sponte, amends the caption to reflect the State of New York as the only proper defendant.