NUNEZ v. THE STATE OF NEW YORK, #2002-030-525, Claim No. 104574, Motion No.
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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
RICHARD NUNEZ, PRO SE
BURKE, LIPTON, PULEO & McCARTHYBy: KEVIN D'ARCY, ESQ.
June 26, 2002
See also (multicaptioned
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
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
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.
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
, 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,
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.
Asiatic Company v Corash
, 34 AD2d 432, 434 (1st Dept.
1970); Non-Linear Trading Company, Inc.
v Braddis Associates, Inc.
, 243 AD2d 107,117 (1st Dept.
1998); Curtin v Community Health Plan
276 AD2d 884, 885-886 (3d Dept. 2000); See
, Spodek v Neiss
, 291 AD2d 551 (2d Dept
In Daniels v Empire-Orr, Inc
., 151 AD2d 370 (1st Dept.
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
. The Court stated:
First, the proponent must allege legally sufficient facts to establish a prima
facie cause of action...in 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
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
)." Washington Avenue Associates, Inc. v Euclid Equipment,
229 AD2d 486, 488 (2d Dept. 1996)
, Glorioso v De Blasio
, 227 AD2d 588, 589 (2d Dept.
; Zabas v Kard
, 194 AD2d 784 (2d
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.
best, what has been described by Claimant is an illusory promise, void for
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
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
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
) 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.
"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,
"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'
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...."
"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.
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.
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,
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
"...the conduct alleged in the proposed amended complaint does not establish a
claim for treble damages under Judiciary Law § 487...."
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
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
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).
 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.