New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-015-272, Claim No. 103284, Motion No. M-64980


Claimant's motion pursuant to CPLR 3025 (b) for leave to amend claim to add negligence cause of action denied where claimant failed to provide proposed amended claim and merit of proposal could not be determined.

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 1, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion pursuant to CPLR 3025 (b) for an order granting leave to supplement his claim to add a cause of action sounding in negligence is denied. This claim by a pro se inmate seeks to recover money damages for personal injuries allegedly sustained as a result of an assault and battery by named and unnamed correction officers at the Oneida Correctional Facility (Oneida) on August 28, 2000 as well as another, separate assault and battery by unnamed correction officers at the same facility on August 29, 2000. Movant now seeks to supplement his claim to add a cause of action sounding in negligence and said to have arisen out of the alleged unauthorized presence of a correction officer (Correction Officer Labella) at the correctional facility where the purported battery occurred. Claimant alleges in his affidavit in support of the motion that C.O. Labella's presence in the facility as well as certain unspecified action taken by the correction officer at 7:00 a.m. directly resulted in the assault and battery of claimant at 8:00 a.m[1]. Claimant did not include a copy of his proposed supplemental claim with his motion papers as is customary on such a motion.

Defense counsel opposed the motion in an affirmation which noted the absence of a proposed supplemental claim and argued that the motion to amend the claim should be denied because the new cause of action sought to be asserted is without merit.

Claimant submitted an unsworn reply which cannot be considered on the motion since it lacks all attributes of an affidavit and is therefore a nullity and not entitled to judicial cognizance (see, Doumanis v Conzo, 265 AD2d 296).

Rule 3025 (b) of the Civil Practice Law and Rules provides:
(b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
While leave to amend a pleading should be freely given the decision as to whether to grant leave is generally left to the sound discretion of the trial court (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957). "In determining whether to grant leave to amend a pleading, a court must examine the underlying merit of the causes of action asserted therein, since to do otherwise would be wasteful of judicial resources (see, Wieder v Skala, 168 AD2d 355)" (McKiernan v McKiernan, 207 AD2d 825). The Appellate Division, Third Department, has held with regard to a motion seeking leave to amend a pleading that "[t]he trial court is obliged to satisfy itself that the proposed claim has merit . . . " (CFJ Assocs. of N.Y. v Hanson Indus., 260 AD2d 917, 919).

Claimant's failure to submit a proposed supplemental claim deprives the Court of the opportunity to make this critical determination. Moreover it is settled that "[w]hen seeking leave to amend a pleading, it is incumbent upon a movant to make 'some evidentiary showing that the claim can be supported' (Cushman & Wakefield v John David , Inc. 25 AD2d 133, 135)" (Mathiesen v Mead, 168 AD2d 736, 737). It is further to be shown that the proposed cause of action has merit since "[a] proposed amendment which is devoid of merit should not be permitted" (Mathiesen, supra at 737).

Even viewed liberally claimant's affidavit in support of this motion is patently insufficient to establish that his proposed supplemental cause of action in negligence has any merit whatsoever.

Claimant's motion is therefore denied.

July 1, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 25, 2002;
  2. Affidavit of Antonio Brown sworn to March 26, 2002;
  3. Affirmation of Joel Marmelstein dated April 12, 2002;
  4. Reply to opposition of Antonio Brown dated April 18, 2002, submitted but not considered.

[1]Movant does not specify on which of the two dates set forth in the claim the alleged conduct took place.