New York State Court of Claims

New York State Court of Claims

HENRY v. THE STATE OF NEW YORK, #2003-009-35, Claim No. 107581, Motion Nos. M-66807, M-66948


Synopsis


Claimant's motion to amend his claim was granted, and his motion to strike pursuant to CPLR 405 was denied.

Case Information

UID:
2003-009-35
Claimant(s):
BOBBY HENRY
Claimant short name:
HENRY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107581
Motion number(s):
M-66807, M-66948
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
BOBBY HENRY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 31, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought two motions pertaining to the above captioned claim. One of the motions (Motion No. M-66807) seeks an order granting claimant permission to serve and file an amended claim. The second motion (Motion No. M-66948) is a motion brought pursuant to CPLR § 405, seeking an order "requiring the Petitioner to serve an Amended Petition wherein a more definite statement of the following matter is made." For purposes of judicial economy, the Court will consider both motions together.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, Proposed Amended Claim (M-66807) 1,2,3


Notice of Motion to Strike, Affidavit in Support, with Exhibits (M-66948) 4,5


Correspondence from G. Lawrence Dillon, Esq., Assistant Attorney General, to claimant, dated June 13, 2003 (M-66948) 6

The Court will first address claimant's motion seeking permission to serve and file an amended claim (Motion No. M-66807). Pursuant to CPLR Rule 3025(b), a party may amend pleadings at any time with Court approval, which shall be freely given. It is well settled that in the absence of prejudice or surprise resulting therefrom, leave to amend pleadings should be granted (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). It does not appear that there would be any prejudice or surprise whatsoever to the defendant in allowing claimant to serve and file an amended claim. Furthermore, no objections have been raised by the defendant, which did not submit any papers in opposition to this application. Additionally, from reviewing the correspondence dated June 13, 2003 (see Item 6), it appears that the Assistant Attorney General assigned to defend this claim has already submitted a verified answer to the amended claim.

With reference to the second motion (Motion No. M-66948), claimant has titled such motion as a "Motion to Strike, for a More Definite Statement Pursuant to CPLR Sec. 405". Section 405 of the CPLR, however, is contained within Article 4 of the CPLR, which "provides a uniform body of rules generally applicable to all special proceedings." (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Bk 7B, CPLR C401:1). Since the within claim brought by claimant is not a special proceeding, Article 4 of the CPLR (including § 405) is not applicable, and claimant's motion has no legal basis or authority, and therefore must be denied.

Accordingly, it is

ORDERED, that Motion No. M-66807 is hereby GRANTED, and claimant is hereby directed to serve and file his amended claim by regular mail, within 45 days from the date of filing of this decision and order in the Clerk's office of the Court of Claims; and it is further

ORDERED, that Motion No. M-66948 is hereby DENIED.


July 31, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims