This Claim was originally filed with the Clerk of the Court on November 29,
2002. The Claim alleges numerous constitutional violations and negligence
relating to various incidents at Southport Correctional Facility (hereinafter
"Southport"). The State filed a Verified Answer on January 6, 2003.
By way of this motion, Claimant seeks to amend his Claim pursuant to CPLR 3025
(b) by adding the allegation that a August 15, 2002 grievance which he
submitted containing the request "[t]hat Claimant would be assigned to [1-cell]
on any and every gallery while confined to Southport Correctional Facility" was
ignored. (Claimant's Affidavit, ¶ 6).
According to CPLR 3025 (b), leave to amend should be freely given in the
absence of surprise or prejudice resulting from the delay. (Esposito v
Billings, 103 AD2d 956, 957; Uniform Rules for the Court of Claims [22
NYCRR] 206.7 [b]). Although CPLR 3025 (b) states that such leave shall be
freely given, the motion is directed to the sound discretion of the Court.
(Murray v City of New York, 43 NY2d 400, 404-405). Factors to be
considered in determining whether to allow amendment of a pleading are whether
there would be any prejudice to the opposing party; the effect, if any, that
amendment would have on the orderly prosecution of the action; whether the
moving party unduly delayed in seeking to add the amendment; and, perhaps most
importantly, whether the proposed amendment is palpably improper or insufficient
as a matter of law. (Excelsior Ins. Co. v Antretter Contr. Corp., 262
AD2d 124; Gonfiantini v Zino, 184 AD2d 368; Harding v Filancia,
144 AD2d 538). The lack of prejudice or interference with the orderly
prosecution of a claim, as here, will not save an otherwise improper
Upon review of Claimant's papers, this Court is unable to discern any
cognizable cause of action in the proposed amendment. As such, the Court finds
the proposed amendment to be insufficient as a matter of law. To the extent
that Claimant is complaining about internal protocol or Department of
Correctional Services regulations and directives, it is well-settled that while
a regulation or directive "[m]ay establish a standard of care and violation of
the standard may lead to liability if a common law or statutory duty is
breached...", it does not impliedly create a cause of action for money damages.
(A. Rabb Alamin/R. Price v State of New York
, Ct Cl, April 26, 1999,
McNamara, J., Claim No. 98122, p 2). Consequently, there is no reason for
allowing a private cause of action for money damages in a situation such as this
where an Article 78 and/or inmate grievance process are available.
(Campolito v State of New York
, Ct Cl, April 27, 2000, Collins, J.,
Claim No. 94670 [UID No. 2000-015-507]).
Moreover, to the extent that Claimant is attempting to fit this proposed
amendment into a constitutional tort theory of liability it must also fail. In
other words, remedies will not be implied when, as is the case here, Claimant's
"[c]onstitutional tort allegations may be analogized to an existing common-law
tort[s] for which there are adequate alternate remedies". (Augat v State of
, 244 AD2d 835, 837, lv denied
91 NY2d 814). In view of the
foregoing, this Court finds that the proposed amendment is insufficient as a
matter of law.
Accordingly, in view of the foregoing, Claimant's Motion to Amend, Motion No.
M-66388, is DENIED.