This is the motion of Sulayman Ahmad for an order: (1) granting him permission
to amend his claim; (2) precluding a defense by the State under CPLR Article 16;
and (3) for summary judgment in claimant's favor on the issue of liability. In
his underlying claim, Mr. Ahmad alleges that he was assaulted by another inmate
at Woodbourne Correctional Facility. Claimant seeks to amend his claim in
several regards. First, he requests permission to amend the caption to change
his name. He explains that his birth name was Paul Williamson, Jr. and that
upon his application, an order was entered granting him permission to change his
name to Sulayman Ahmad. See the July 31, 1995 order of Hon. Judith A. Hillery,
attached to claimant's moving papers. Claimant asserts that he now wishes to
change his name back to Paul Williamson, Jr., but has not yet "completed that
legal process." He asserts that the caption should be amended to facilitate
documentary discovery as defendant has sought documents which contain references
to the name Paul Williamson, Jr. In view of the foregoing, the caption may be
amended to reflect claimant's current name and his birth name, as set forth
Claimant also seeks to reduce the amount of damages he seeks. As defendant has
no objection (see ¶8 of the May 8, 2002 affirmation of James. E.
Shoemaker), such request will be granted, as set forth below.
As to CPLR article 16, entitled "Limited Liability of Persons Jointly Liable,"
claimant seeks an order precluding defendant from raising its third affirmative
defense, in which defendant asserts that "it was the negligence or fault or want
of care of some third person or persons" that resulted in claimant's damages.
He also seeks to amend his claim to assert that various exceptions to limited
liability apply in this case, specifically those found in CPLR §§
1602.2(iv), 1602.3, 1602.5, 1602.7 and 1602.11.
To the extent that claimant seeks to preclude the State's third affirmative
defense, it should be noted that affirmative defenses are not dispositive of a
claim. Like the allegations in a claim, they are merely assertions made by a
party. There is no reason to strike affirmative defenses in the absence of
prejudice. See., e.g., Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at
30-410. Claimant has alleged no prejudice in this case, nor has he asserted
that any scandalous matter is contained in defendant's pleading. See CPLR
As to the amendment of his claim, CPLR §1603 provides in relevant part
that "a party asserting that the limitations on liability set forth in this
article do not apply shall allege and prove by a preponderance of the evidence
that one or more of the exemptions set forth in subdivision one of section
sixteen hundred one or section sixteen hundred two applies." Pursuant to CPLR
3025(b), the Court may permit the amendment of a pleading 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). No prejudice has been identified by
defendant in this case. See, e.g., Hamilton v State of New York,
Ct Cl dated 3/28/01, Nadel, J. (unreported, claim no. 99780, motion no.
M-62857). See also Cole v Mandell Food Stores, Inc., 93 NY2d 34, 687
NYS2d 598 (1999).
The other changes that claimant seeks to make are not necessary as they consist
largely of the addition of legal theories; the essential occurrences alleged by
claimant have not changed in the proposed amended claim.
Finally, aside from his request for summary judgment on liability, claimant has
made no arguments or provided any submissions in support. Defendant disputes
the claims in this action and issues of fact remain. Accordingly, summary
judgment is inappropriate. See CPLR 3212(b).
Accordingly, having reviewed the submissions
IT IS ORDERED that motion no. M-64778 be denied in all respects except that
within forty-five (45) days of the filing of this Order, claimant shall serve
and file an amended claim which differs from the original claim only in