This Claim was originally filed with the Clerk of the Court on September 9,
2002. The Claim alleges numerous constitutional violations and negligence
relating to three separate incidents including mail delivery at Southport
Correctional Facility (hereinafter "Southport"); the removal of his sneakers;
and the denial of dental care at Attica Correctional Facility. The State filed
a Verified Answer on October 10, 2002.
By way of this motion, Claimant seeks to amend his Claim, pursuant to CPLR 3025
(b), with the allegation that incoming mail from Claimant's sister is being
delivered to another inmate at Southport.
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
The Court finds the proposed amendment to be insufficient as a matter of law.
Although Claimant does not cite to any specific facility directive it appears
that his proposed amendment centers on Southport's failure to follow their own
mail regulations. It is well-settled, however, 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.
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,
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-66387, is DENIED.