New York State Court of Claims

New York State Court of Claims

NUNEZ v. THE STATE OF NEW YORK, #2002-030-525, Claim No. 104574, Motion No. M-65275


Motion to amend claim denied. No merit to proposed additional causes of action. One for breach of contract palpably improper; one for negligence both not included in proposed claim and not supported by any facts showing how State could have been negligent

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:
Third-party defendant's attorney:

Signature date:
June 26, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on Claimant's motion for leave to amend his claim brought pursuant to §3025 (b) of The Civil Practice Law and Rules:
1,2,3,4 Notice of Motion, Affidavit in Support, Memorandum in Support and accompanying exhibit, including Proposed Amended Complaint (sic)

5,6 Filed Papers: Claim, Answer
  1. Opposition
After carefully reviewing the papers submitted, and the applicable law, the motion is disposed of as follows:
According to the Claim - date stamped in the Clerk's office on July 16, 2001 - a Notice of Intention to file a claim was served on the Attorney General's Office on October 15, 1999. The filed Claim asserts two causes of action, described by Claimant - who is proceeding pro se - as "trespass...without compensation upon an easement of light and air held by Claimant's subject property on adjacent lands of the State of New York..."; and "nuisance", respectively. [Claim Number 104574; Paragraphs 3 and 7]. These claims are based upon the removal of certain trees from State owned land during the course of a highway construction project on the Taconic State Parkway, "...alongside Miller Hill Road [in the] Town of East Fishkill, State of New York, and opposite to Claimant's residence [at 20 Miller Hill Road]. [Ibid, Paragraph 4].

Claimant asks that he be given leave to allege a "third complaint", sounding in breach of contract.[1] The contract alleged is that after trees were removed, and on or about August 5, 1999, "...claimant met with representatives of the New York State Highway Department..." and was told that "...additional pine trees would be placed." [Proposed Amended Complaint (sic), Paragraph 7 and 8]. Claimant states: "The agreement of August 5, 1999 was memorialized by the New York State Highway Department in its own memorandums and with continued assurances to the claimant that trees would be planted in the future....The New York State Highway Department did not plant trees and in a letter of November 6, 2000 informed claimant that trees would not be planted....The contract to plant trees prevented claimant from pursuing further action against the Defendant until it was breached on or about November 6, 2000." [Ibid, Paragraphs 9,11,13].

Claimant indicates that it was not until May 16, 2002, when he had an opportunity to review documents provided pursuant to a discovery request, that he realized he could assert a cause of action claiming breach of contract. He refers to a memorandum by the general contractor dated January 12, 1999 "in support of revised stream diversion plans which set forth as reasons for the changes, the chief one being saving of months of time on the project." [Memorandum in Support of Motion for Leave to Amend Claim, Paragraph 3-a]. Other documents discovered included his own letters to "R. Peters, Area Supervisor for Region 8', as well as "...[t]he Field Engineer's Diary entries of July 26, 1999 and July 30, 1999 describing the recording of Claimant's written complaint letter to R. Peters and to a proposed meeting of August 4, 1999 at the site." [Ibid, Paragraphs 3-b, 3-c]. The diary also records an August 5, 1999 meeting, and notes Claimant's desire for a screen to be reestablished, and the various plants that might replace those removed. [Ibid, Paragraph 3-d]. On or about January 26, 2000 the diary notes that "...current plantings were enough and that other changes would be by location only." [Ibid, Paragraph 3-g].

Because of his document discovery, Claimant states, he now had possession of his own lost letter dated July 22, 1999 complaining about the tree removal, and the recording of his complaints by the Field Engineer; as well as a "..typed memorandum of August 5, 1999 by R. Fischlein, Area Supervisor for Region 8 that refers to ‘statements' that additional pine trees could be placed and that the Defendant ‘agreed that additional plants be placed as stated above.'....[and the] Field Engineer's Diary of January 26, 2000 notation that R.E. Crosby...had decided that current plantings were enough and that other changes would be by location only...." [Affidavit in Support of Motion for Leave to Amend Claim, Paragraphs 7-b,7-c,7-e,7-g].
A pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) of the Civil Practice Law and Rules. See, 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency.

There has been some difference in approach as to what degree the merits of the newly proposed cause of action may be examined. See, e.g., East Asiatic Company v Corash, 34 AD2d 432, 434 (1st Dept. 1970);[2] Non-Linear Trading Company, Inc. v Braddis Associates, Inc., 243 AD2d 107,117 (1st Dept. 1998);[3] Curtin v Community Health Plan, 276 AD2d 884, 885-886 (3d Dept. 2000);[4] See also, Spodek v Neiss, 291 AD2d 551 (2d Dept 2002).[5]

In Daniels v Empire-Orr, Inc., 151 AD2d 370 (1st Dept. 1989),[6] the First Department reconciled cases urging greater examination of the proposed cause of action - versus those repeating the principle that amendments should be "freely granted" and advocating what amounts to a glancing examination of the proposed cause of action - by utilizing "...a two-pronged test" it derived from East Asiatic Company v Corash, supra. The Court stated:
First, the proponent must allege legally sufficient facts to establish a prima facie cause of the proposed amended pleading. If the facts alleged are incongruent with the legal theory relied on by the proponent the proposed amendment must fail as a matter of law....(citations omitted). The next step is for the...[trial] court to test the pleading's merit. The merit of a proposed amended pleading must be sustained, however, unless the alleged insufficiency or lack of merit is clear and free from doubt....(citation omitted). The party opposing the motion to amend, therefore, must overcome a presumption of validity in favor of the moving party, and demonstrate that the facts alleged and relied upon in the moving papers are obviously not reliable or are insufficient....(citation omitted). This does not mean, however, that those facts need to be proven at this stage....(citations omitted).

Since then, it has been generally accepted that a court "...should pass upon the proposed pleading's merit before granting leave to amend so as to promote judicial economy and avoid wasteful motion practice....(citations omitted)." Washington Avenue Associates, Inc. v Euclid Equipment, Inc, 229 AD2d 486, 488 (2d Dept. 1996)[7]; See, also, Glorioso v De Blasio, 227 AD2d 588, 589 (2d Dept. 1996)[8]; Zabas v Kard, 194 AD2d 784 (2d Dept. 1993).[9]

Finally, a copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that "...unequivocally make out a prima facie basis for the claim...or other matter sought to be added...." [Commentary C3025:11; § 3025 Civil Practice Law and Rules]. Thus, in reviewing the proposed amended complaint in an action that initially alleged "...defendant breached the contract and reasonable standards of care by installing...tile in a defective manner and using tile which was ‘discontinued by the manufacturer without advising plaintiff prior to the time the tile was discontinued'....", the Third Department found plaintiff offered only conclusory allegations to support additional proposed causes of action for breach of contract and fraud. Krouner v Travis, 290 AD2d 917, 918 (3d Dept. 2002). "Plaintiff's contention that the handwritten note [attached to a single invoice] rises to the level of a contractual obligation to perform all repairs in perpetuity is...deficient. The language at issue lacks any definite terms, including the most fundamental element of a contract, a promise ‘to do, or not to do, a particular thing'....(citations omitted)." Ibid, 918-919.
Accepting the factual allegations as true, Claimant clearly would not have a cause of action for breach of contract.[10] At best, what has been described by Claimant is an illusory promise, void for indefiniteness.[11] Taken from another view, the alleged promise to plant trees is not supported by consideration, nor was it necessarily made by one who had the authority to bind his principal. Thus, any amendment of the claim to include an additional cause of action for breach of contract would be palpably improper.

In addition to his request to add an additional cause of action, Claimant requests permission to make three relatively minor changes. He asks to change his post office address; alter the claim to include an assertion that he is now admitted to practice law; and add an allegation that he is the "owner of title to the subject property at 20 Miller Hill Road, Town of East Fishkill, County of Dutchess, State of New York and has been the owner continuously since the time that this action commenced." [Proposed Amended Complaint,(sic) paragraphs 2,3,4]. The first two changes relate only to ministerial matters and should simply be included in correspondence to the Clerk so that the change of address is duly noted. As to the assertion of title to the property affected, this is a more substantive matter and Claimant is hereby granted leave to amend Claim Number 104574 to include an additional allegation that he is the owner as noted. In all other respects, his motion to amend the Claim is denied.

Claimant may serve and file an Amended Claim including only the ownership allegation within thirty (30) days of receipt of a filed copy of this Decision and Order, after which defendant shall have the time prescribed by law to interpose its Answer.

Both parties are directed to appear for conference on July 18, 2002 at 10:00 a.m. Any motions as well as any further discovery may be scheduled at that time. Only an attorney familiar with the file should attend on behalf of the Defendant and, if Claimant should have retained counsel in the interim, said counsel is directed to file a Notice of Appearance and is also expected to be familiar with the file. No adjournments will be granted except in conformance with part 125 of the Uniform Trial Rules for the New York State Court.

June 26, 2002
White Plains, New York

Judge of the Court of Claims

[1] He also indicates in the Memorandum in Support of Motion for leave to Amend Claim that he wants to add "...additional claims of Breach of Contract and of Negligence." The Proposed Amended Complaint (sic) appended to this application, however, does not contain any additional claim of negligence and includes only the breach of contract claim. Additionally, there is no specific indication of how the State was allegedly negligent in the Affidavit in Support, either. Accordingly, this aspect of Claimant's motion is totally unsupported and will not be discussed.
[2] "Special Term granted the motion to amend without passing upon the validity of the causes of action as amended. While this practice has several precedents respectable because of their age, it represents a procedure which is no longer tolerable." The Appellate Division then concluded that the proposed amendments - all attempts at allegations of breach of contract and related theories - did not state causes of action in that they, respectively, omitted allegations of an acceptance of an assignment by an agent; included an incorrect legal conclusion about the effect of a transfer by deed; and included a "meaningless" conclusory allegation. Ibid, at 435-436.
[3] "A motion seeking leave to amend pleadings requires the proponent to allege facts legally sufficient to support its proposed pleading, and where the facts relied upon are ‘obviously not reliable or are insufficient', the absence of merit is ‘free from doubt' (citation omitted)."
[4] The plaintiff's motion to amend his complaint to include an additional cause of action alleging that the health plan defendant had a "...policy of not recommending or paying for a test for prostate cancer known as the ‘PSA' test...., [and that the policy] restricts medically appropriate diagnostic tests [and] constitutes a breach of contract....", was denied. The Appellate Division said the cause of action did not set forth any "contractual violation" and that plaintiff failed to show "...some evidence of merit....[beyond] his conclusory allegation...."
[5] "The Supreme Court also properly declined the plaintiff's request for leave to replead, as the fraud claims do not allege the breach of any duty extraneous to or distinct from the parties' obligations under the contract... [citing to Non- Linear Trading Co. v Braddis Assocs., supra.]"
[6] The Court allowed amendment of the complaint to include an additional cause of action alleging gender based employment discrimination pursuant to a provision of the Executive Law.
[7] Leave to amend complaint denied. In order to claim tortious interference with contract the plaintiff should have alleged the contract - specifically a lease agreement - would not have been breached "but for" the defendant's conduct. Plaintiff did not support the "conclusory allegation" that but for defendant's actions the third party "...would have cured the breach and paid the subsequent rent payments that became due each month....with any relevant facts." Id, at 487.
[8] In legal malpractice action, plaintiff denied leave to file amended complaint adding cause of action "...where the proposed amendment is totally devoid of merit....(citation omitted)", because "...the conduct alleged in the proposed amended complaint does not establish a claim for treble damages under Judiciary Law § 487...."
[9] In a personal injury action application to amend complaint's ad damnum clause to include demand for punitive damages denied. "The allegations contained in the plaintiffs' amended complaints amount to nothing more than mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages...(citations omitted)."
[10] To some degree, it would also seem that damages for a breach of contract cause of action would be far too speculative. Indeed, the root of Claimant's alleged injury appears to be one for which the equitable relief of specific performance might be sought. Such equitable relief is beyond the subject matter jurisdiction of this Court. See, generally, Court of Claims Act § 9(2); Psaty v Duryea, 306 NY 413 (1954); Amberge v State of New York, 186 AD2d 962 (3d Dept. 1992).
[11] But, c.f., "...[W]e have here the undisputed fact...that the services contemplated by the agreement have been fully and fairly performed. ‘A promise that was originally too indefinite, may by performance become definite and as the other party to the bargain must be regarded as continuously assenting to receive such performance in return for his own promise, a valid unilateral contract arises on receipt of such performance.' (1 Williston on Contracts, § 106.)" Grundt v Shenk, 222 AD 82 (2d Dept. 1927), affd, 248 NY 602 (1928). Thus where decedent promised to write a will leaving plaintiff money in exchange for plaintiff remaining in decedent's employ and advancing decedent's business interests, and there was evidence decedent gave his attorney a memorandum directing him to draw a will including a bequest to plaintiff, and plaintiff continued in decedent's employ, the Appellate Division found there was a contract.