New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-019-524, Claim No. 107011, Motion No. M-66388


Claimant's motion to amend claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves to amend this Claim pursuant to CPLR 3025. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed November 29, 2002.
  2. Verified Answer, filed January 6, 2003.
  3. Notice of Motion No. M-66388, dated January 31, 2003, and filed February 6, 2003.
  4. Affidavit of Johnathan Johnson, in support of motion, sworn to January 31, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated February 13, 2003, and filed February 18, 2003.
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 amendment.

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]).[1] 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 New York, 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.

March 6, 2003
Binghamton, New York

Judge of the Court of Claims

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