4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July
22, 2002, and filed July 24, 2002, with attached exhibits.
The underlying claim relates to allegations of harassment of Claimant by
Correction Officer Kapnolas at Southport Correctional Facility (hereinafter
"Facility"). More specifically, Claimant alleges that Correction Officer
Kapnolas improperly searched his cell, verbally harassed him, and stole a new
pair of headphones from him between April 2001 through June 2001. This Claim
was filed with the Clerk of the Court on June 20, 2001 and served on the
Attorney General's office by certified mail, return receipt requested, on June
By way of this motion, Claimant seeks to amend his Claim to include additional
allegations of harassment by Officer Kapnolas relating to telephone access
occurring in June of 2001.
Pleadings 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]).
CPLR 3025 (b) states that such "leave shall be freely given" and it is
well-settled that such motions are directed to the sound discretion of the
Court. (Murray v City of New York, 43 NY2d 400, 404-405, rearg denied
45 NY2d 966). Factors to be considered in determining whether to allow
amendment of a pleading are the resulting prejudice, if any, to the opposing
party; the effect, if any, the proposed amendment would have on the orderly
prosecution of the action; whether the moving party unduly delayed in seeking to
add the amendment; 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; Harding v
Filancia, 144 AD2d 538). The State argues that each of these factors
warrant denial of Claimant's motion.
On the issue of prejudice, the State argues that Claimant's proposed amendment
is so vague as to impede the State's investigation into the incident. To the
contrary, however, the Court finds that the proposed amendment provided
sufficient detail to enable Officer Kapnolas to submit an affidavit in
opposition denying the allegations. Officer Kapnolas does not indicate any
difficulty in recalling the June 2001 telephone access incident and, quite the
opposite, adamantly denies any wrongdoing in connection therewith. The Court
finds the State has failed to establish any resulting prejudice if the proposed
amendment were allowed to proceed.
Next, the State argues that the orderly prosecution of this matter would be
adversely impacted because the proposed amendment adds nothing new to this
Claim. However, in this Court's view, this matter is not scheduled for trial
and although some additional discovery may be required there is more than ample
time to conduct the same. This Court finds that the orderly prosecution of this
matter would not be altered in any substantive manner.
With respect to Claimant's delay in requesting this relief, although a year has
transpired since the Claim was filed and served, Claimant filed this instant
motion shortly after this Court's Decision & Order which addressed, in part,
discovery surrounding the June 2001 incident. (Johnson v State of New
York, Ct Cl, June 19, 2002, Lebous, J., Claim No. 104447, Motion Nos.
M-64883 & CM-65276). In fact, a review of Claimant's prior discovery
demands (which included demands relative to the June 2001 telephone incident)
tends to support the conclusion that Claimant believed he had included that
incident in his original claim and only realized the omission upon the State's
refusal to produce discovery relating to an unpled incident. As such,
Claimant's delay in seeking this relief does not warrant denial of the motion in
and of itself.
Finally, the State argues that the proposed amended claim is palpably improper
or insufficient as a matter of law and relies on Officer Kapnolas' affidavit
denying these additional allegations to support its conclusion. However, at
this juncture, Officer Kapnolas' denial of events is insufficient to support a
conclusion that the proposed amendment is palpably improper or insufficient as a
matter of law. Rather, Officer Kapnolas' denials merely illustrate that these
parties have sharply divergent views of the course of events which may well end
up as a credibility determination by this Court which are matters best left for
Consequently, for the reasons stated above, it is ORDERED that Claimant's
motion to amend Claim No. 104447, Motion No. M-65415, is GRANTED on the
condition that, within 60 days of the date of filing of this Decision and Order,
he serve his Amended Claim upon the Attorney General by regular mail (CPLR 2103
[b]) and file the Amended Claim, with an affidavit of service attached, with the
Clerk of the Court.