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
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
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]).