FILED PAPERS: Claim, filed September 1, 2000; Answer, filed September 20,
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,
, that Claimants file and serve their motion to amend the Claim
on or before April 16, 2001 (Ferran Affidavit
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, ¶
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
The defendant shall have 30 days
thereafter to file and serve an amended answer.