New York State Court of Claims

New York State Court of Claims

CROPPER v. THE STATE OF NEW YORK, #2003-009-56, Claim No. 104012, Motion No. M-67220


Claimant's motion to amend his claim seeking to add a new cause of action was denied.

Case Information

WALTER CROPPER The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking an order permitting him to amend his claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Amended Claim, with Exhibit 1,2,3

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 denied.

Based on the foregoing, it is

ORDERED, that Motion No. M-67220 is DENIED.

October 29, 2003
Syracuse, New York

Judge of the Court of Claims