Notice of Motion, Affidavit in Support, Proposed Amended Claim, with
Affirmation in Opposition 4
In his original claim, claimant, an inmate appearing pro se, seeks
damages for certain items of personal property which were allegedly lost or
stolen when he was transferred from Green Haven Correctional Facility to Oneida
Correctional Facility in August, 2000. In his claim, claimant seeks damages in
the amount of $150.00.
This claim had been scheduled for a prisoner pro se trial term held by
this Court at Marcy Correctional Facility on June 18, 2003. On that date,
claimant appeared for his trial, but the trial was adjourned due to the fact
that claimant's legal documents pertaining to this claim were not timely
delivered to the facility.
Claimant has now brought this motion to amend his claim, seeking to add a new
cause of action, alleging negligence against the State in failing to have his
legal documents available to him at the time of his scheduled trial. Claimant
alleges that he suffered mental anguish, heightened anxiety and depression
resulting from said negligence.
Pursuant to CPLR Rule 3025(b), leave to amend pleadings, although subject to
the discretion of the Court, should be freely granted in the absence of
prejudice or surprise. However, if the proposed amended cause of action is
obviously lacking in merit, it is within the Court's discretion to deny such an
application (Curtin v Community Health Plan, 276 AD2d 884). Therefore, a
claimant must make some evidentiary showing in support of his amended claim
(Mathiesen v Mead, 168 AD2d 736).
In the instant matter, claimant has not alleged any claim of physical damages,
and his allegations can best be viewed as asserting a claim for the intentional
or negligent infliction of emotional distress.
To the extent that his proposed amendment constitutes an allegation of
intentional infliction of emotional distress, public policy prohibits such an
action against the State (Brown v State of New York, 125 AD2d 750,
motion for lv to appeal dismissed 70 NY2d 747; Wheeler v State of New
York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785,
lv denied 58 NY2d 610).
A claim for negligent infliction of emotional distress requires a showing that
the conduct on the part of the defendant unreasonably endangered claimant's
physical safety (Dobisky v Rand, 248 AD2d 903, 905). Such a claim is
limited to exceptional circumstances in which the emotional injury is a direct,
rather than a consequential, result of the negligent act (Kennedy v McKesson
Co., 58 NY2d 500, 506) and where factors exist which create a high
likelihood that the claim is genuine, rather than spurious or feigned (Lando
v State of New York, 39 NY2d 803).
In this case, the conclusory or speculative allegations made by claimant are
insufficient to establish that defendant's conduct unreasonably endangered his
physical safety, or that claimant's alleged emotional injuries (unsupported by
sufficient medical evidence) were a direct result of such negligent acts.
Accordingly, this Court finds that claimant's allegations set forth in his
proposed amended claim are insufficient as a matter of law, and therefore, in
the Court's discretion, claimant's application to amend his claim is hereby
Based on the foregoing, it is
ORDERED, that Motion No. M-67220 is DENIED.