New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-019-595, Claim No. 106508, Motion No. M-65903


Claimant's motion to amend claim with bailment cause of action is denied due to failure to comply with CCA 10 (9).

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:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for leave to amend his 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 August 15, 2002.
  2. Verified Answer, filed September 20, 2002.
  3. Notice of Motion No. M-65903, dated October 7, 2002, and filed October 10, 2002.
  4. Affidavit of Johnathan Johnson, in support of motion, sworn to October 7, 2002.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated October 24, 2002, and filed October 28, 2002, with attached exhibits.
  6. Affidavit of James M. Meck, in support of motion, sworn to October 22, 2002.
  7. Affidavit of Janet Giannini, in support of motion, sworn to October 23, 2002.

The original Claim alleges theories of assault and battery and negligent supervision due to the failure of correction officers to prevent another inmate from throwing bodily fluids and feces at him while incarcerated at Southport Correctional Facility (hereinafter "Southport") on August 9, 2002. This Claim was filed on August 15, 2002 and served on the Attorney General's office by certified mail, return receipt requested, on or about that same date. The State filed a Verified Answer on September 20, 2002.

By way of this motion, Claimant seeks to amend this Claim to include allegations that: (1) on September 6, 2002, certain correction officers deprived him access to his 15 pornographic magazines and 45 personal photographs in retaliation for his filing of this Claim; and (2) on October 4, 2002 Claimant discovered this same property was missing from his personal belongings upon his transfer from a "Level 2" cell to a "Level 1" cell.

A motion to amend cannot be used to commence an untimely claim (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, as of the date this motion was filed, ninety days had yet to expire from the dates of accrual (September 6, 2002 and October 4, 2002), thus the proposed amendments are not untimely. Nor is there any allegation that the original Claim was untimely or improperly filed and served. In other words, this motion is not an attempt to circumvent the jurisdictional requirements of the Court of Claims Act.[1]

Turning then to the proper considerations on this motion, CPLR 3025 (b) states that leave to amend "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; Uniform Rules for the Court of Claims [22 NYCRR] 206.7 [b]). Generally, the 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 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). Here, Claimant missed the time periods in which he could have amended his claim as of course, and thus seeks leave for such relief.

In opposition, the State asserts these are separate unrelated matters that are "[n]ot related in any rational way to the allegations in the claim arising from the August 9, 2002 incident." (Affirmation of Joseph F. Romani, AAG, ¶ 5).

Although Claimant may have described the proposed amendments in terms of retaliation, in this Court's view, the gravamen of both proposed amendments are bailment in nature (e.g., deprivation of property and missing property). As such, this Court finds that resort to CPLR 3025 is premature. Inmate property claims are governed by CCA 10 (9) which requires that:

[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

More specifically, the Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). The State has provided the Affidavit of Janet Giannini, the chief fiscal officer at Southport whose duties include overseeing inmate property claims, as well as an Affidavit from James M. Meck, the inmate grievance supervisor at Southport. Mr. Meck states that he could not locate any grievance from either September 6, 2002 or October 4, 2002. (State's Exhibit A, ¶ 4). On the other hand, Ms. Giannini avers she located a claim filed by Claimant which refers to magazines and photographs and mentions the aforesaid dates. (State's Exhibit B, ¶ 4). Ms. Giannini states this claim is still under investigation. (State's Exhibit B, ¶ 5). In short, Claimant has not yet completed the first step of the initial review let alone the subsequent appeal process. Consequently, the Court finds Claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not yet pursue this matter in this venue relative to being deprived of his property and/or its alleged disappearance. (Richards v State of New York, Ct Cl, August 3, 2000, Corbett, J., Claim No. 102440, Motion No. M-61851; Christian v State of New York, Ct Cl, May 11, 2001, Midey, J., Claim No. 103806, Motion No. M-63207). Stated another way, the failure to comply with CCA 10 (9) is the equivalent of finding that the proposed amendments are insufficient as a matter of law pursuant to CPLR 3025 (b).

Accordingly, IT IS ORDERED that Claimant's motion seeking leave to amend his claim, Motion No. M-65903, is DENIED.

December 9, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court has no way of determining whether Claimant is attempting to circumvent the filing fee requirement of CCA 11-a. It is noted, however, that this is Claimant's third motion to amend in connection with three different claims.