New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-019-539, Claim No. 105402, Motion No. M-65129


Claimant's motion to amend claim is granted in part and denied in part.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves to amend this Claim pursuant to CPLR 3025. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed December 27, 2001.
  2. Verified Answer, filed February 11, 2002.
  3. Notice of Motion No. M-65129, dated April 25, 2002, and filed May 1, 2002.
  4. Affidavit of Johnathan Johnson, in support of motion, sworn to April 26, 2002.
  5. Proposed "AMENDED COMPLAINT", sworn to April 26, 2002.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated May 13, 2002, and filed May 15, 2002.
This Claim alleges that two correction officers retaliated against Claimant by fabricating charges against him that he spit on another inmate on December 13, 2001, resulting in a violation charge, as well as various deprivation orders. The Claim was filed with the Clerk of the Court on December 27, 2001. The Claim asserts various constitutional violations, together with negligent supervision. The State filed its Verified Answer on February 11, 2002. By way of this motion, Claimant seeks leave to amend said original Claim by adding the two specific correction officers as named-defendants and adding an additional incident of alleged retaliation that occurred on April 21, 2002. More specifically, Claimant alleges that these same two correction officers fabricated charges against him for refusing to take a drug test. The theories of liability, ranging from various constitutional grounds to negligent supervision, remain the same. This motion was filed on May 1, 2002. In opposition, the State argues the proposed amendments constitute an entirely different incident and should not be incorporated into this claim.

In the first instance, this Court recognizes that a motion to amend cannot be used as a mechanism to, in effect, commence an untimely claim pursuant to Court of Claims Act 10(3), which is jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849), nor as an attempt by Claimant to cure a jurisdictional defect in the original claim. (Grande v State of New York, 160 Misc 2d 383). Here, since ninety days have yet to expire from the accrual of the April 21, 2002 incident, the proposed amendment is not untimely. Nor is there any allegation that the original Claim was untimely or improperly filed and served.[1] In sum, this motion is not an attempt to circumvent the jurisdictional requirements of the Court of Claims Act.

Turning then to the proper considerations on this motion, this Court's rules state that pleadings may be amended in the manner provided by CPLR 3025. (Uniform Rules for the Court of Claims [22 NYCRR] 206.7 [b]). Here, Claimant missed each of the time periods in which he could have amended his claim as of course, and thus seeks leave for such relief pursuant to CPLR 3025 subdivision b. Under CPLR 3025 (b), it is well-settled that such leave shall be freely given, although the motion is directed to the sound discretion of the Court. (Murray v City of New York, 43 NY2d 400, 404-405). 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 amendment; and, perhaps most importantly, 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; Harding v Filancia, 144 AD2d 538).

First, it is well-settled that adding individual correction officers as defendants in the Court of Claims is palpably improper. As such, to the extent Claimant's motion seeks to amend his Claim to add Correction Officers Lasler and Marshall as individual defendants, the motion is denied. With respect to the addition of the April 21, 2002 incident, the State asserts that this is a separate unrelated matter that "[w]ould only serve to confuse matters, and create prejudice to the defendant's ability to defend the original claim." (Affirmation of Joseph F. Romani, AAG, ¶ 10). The Court disagrees. The December 13, 2001 incident and the April 21, 2002 incident are related inasmuch as Claimant contends they represent a pattern of retaliation by these two particular correction officers. Moreover, the State's claim of prejudice is conclusory in nature and without any demonstrated basis. Rather, arguably, the inclusion of the April 21, 2002 incident would lead to a more orderly prosecution of these two incidents since witnesses and underlying facts would likely be the same. Additionally, there is no issue here of undue delay, since Claimant filed this motion less than two weeks after the second alleged incident. Finally, on the issue of merit, other than references to Claimant's reliance on unsupported assertions, the State does not offer any facts from someone with firsthand knowledge in contradiction or argue any substantive legal arguments from which this Court could conclude that the officers' actions were protected by immunity rendering the proposed amendment palpably improper or insufficient as a matter of law. (Arteaga v State of New York, 72 NY2d 212). As such, it would be premature for the Court to find that this proposed amendment is palpably improper or insufficient as a matter of law. Consequently, in view of the foregoing considerations, this Court finds that Claimant's motion to amend his Claim to include the April 21, 2002 incident should be granted. For purposes of clarification, however, the Court notes that Claimant addressed only the April 21, 2002 incident in his proposed amended claim, apparently under the assumption that his original claim and the proposed amended claim would be read together. When, as here, a motion to amend is granted, the amended pleading should be prepared to be all-inclusive in order to supplant the original pleading in its entirety.

Consequently, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-65129, to amend Claim No. 105402 is GRANTED IN PART and DENIED IN PART. Claimant shall, within 30 days of the date of filing of this Decision and Order, both file a Verified Amended Claim with the Clerk of the Court and shall serve a copy of said Amended Claim upon the office of the Attorney General personally or by certified mail, return receipt requested. The defendant shall have 40 days thereafter to file and serve an amended answer. (22 NYCRR 206.7 [b]).

June 6, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Rather, the State's Verified Answer contained affirmative defenses directed towards the alleged failure of the original claim to particularize the condition, conduct, nature of the cause of action, and items of damages pursuant to CCA 11. This proposed amendment does not attempt to rectify those alleged deficiencies. The State has not moved to dismiss based thereon and the Court makes no findings herein relative to the merit of these stated affirmative defenses.