2) Affirmation in Opposition of Assistant attorney General Gwendolyn Hatcher
(Hatcher Affirmation) filed April 14, 2003;
3) Reply of Pedro Nieblas (Nieblas Reply) filed April 16, 2003.
Filed Papers: Claim filed October 12, 2000; Verified Answer filed November 17,
Claimant filed this Claim alleging that between August 15, 2000 and September
19, 2000 his parole officer made numerous false accusations of drug use based
upon unreliable toxicology reports and coerced the Claimant to admit to drug use
by threats of incarceration (Claim, ¶¶ 7-29). Claimant now seeks
permission to amend his claim by adding "paragraphs 27 through 84" [which]
incorporates additional facts and parties of interest in this action" (Nieblas
Affidavit, ¶ 4). Claimant now alleges that he has been retaliated against
for filing the instant claim (Exhibit 2, ¶ 30) and relates further
allegations of threats and false accusations, inter alia
, by his parole
officer and business partner. Claimant alleges these actions resulted in his
arrest in June 2002 - the charges were subsequently dismissed on August 15,
¶¶ 47-49). Claimant further alleges he was falsely
arrested on June 26, 2002, for parole violations and that in the course of the
parole hearings, false testimony was knowingly presented against him (id.
¶¶ 50-69). A final parole revocation hearing was conducted on
October 1, 2002 (id.
amended claim seeks to expand the first two causes of action for negligence to
include the foregoing allegations and to add two additional causes of action
sounding in malicious prosecution and unlawful imprisonment (id
¶ 80 ["Third Claim For Relief"]) and intentional abuse of process
at ¶ 83 ["Fourth Claim For Relief"]). Defendant opposes the
application asserting that such amendment must be made pursuant to Court of
Claims Act §§ 10 and 11 (Hatcher Affirmation
, ¶ 3).
Leave to amend is to be "freely given" upon such terms as may be just (CPLR
3025[b]). 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 new
allegations; and 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, 370;
Harding v Filancia, 144 AD2d 538, 539; White v State of New York,
161 Misc 2d 938). While a court has broad discretion in deciding whether leave
to amend should be granted, it is considered an improvident exercise of
discretion to deny leave to amend in the absence of an inordinate delay and a
showing of prejudice to the defendant (see Edenwald Contracting Co., Inc. v
City of New York, 60 NY2d 957, 959; Scarangello v State of New York,
111 AD2d 798).
The Court is of the view that Claimant's proposed amendment, contrary to his
assertions, does not involve the same transaction and set of facts (cf.
Plattsburgh Distrib. Co. v Hudson Valley Wine Co., 108 AD2d 1043, 1044).
Rather, Claimant seeks to assert causes of action stemming from a discreet
series of events which resulted in his arrest in April 2002 and culminated in an
October 2002 hearing. Additionally, the original Claim did not and could not
give notice of the present allegations which occurred years after the events at
the core of the original Claim. As such, Claimant is not entitled to the
benefits of the relation back doctrine (see CPLR 203[f]); see also
Thorne v State of New York, Ct Cl, O'Rourke, J., Claim No. 89580, Motion
No. M-60185, UID #2000-017-003, May 16, 2000).
It bears noting the new causes of action, if asserted in a newly filed claim
would be untimely filed (see
Court of Claims Act § 10) and, as
Defendant correctly points out, would require Claimant to make an application
pursuant to Court of Claims Act § 10(6) for permission to late file said
claims. Absent the benefit of the relation back doctrine, the proposed
amendment, given the passing of the statute of limitations, is palpably improper
(see Germantown Cent. Sch. Dist. v Clark, Clark, Millis &
, 294 AD2d 93, 99 [granting amendment would "improperly circumvent
the statute of limitations' bar on these claims"]; see also Cannon v State of
163 Misc 2d 623, 625-626
Accordingly, Claimant's motion is denied.