New York State Court of Claims

New York State Court of Claims

NIEBLAS v. THE STATE OF NEW YORK, #2003-028-551, Claim No. 103210, Motion No. M-66550


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:
BY: Gwendolyn Hatcher, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion pursuant to CPLR 3025 for leave to amend the Claim:

1) Notice of Motion and Supporting Affidavit of Pedro Nieblas (Nieblas Affidavit) filed March 6, 2003 with annexed exhibits 1 and 2[1];

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, 2000.

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, 2002 (id. ¶¶ 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. at ¶¶ 50-69). A final parole revocation hearing was conducted on October 1, 2002 (id.).[2] The proposed 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. at ¶ 80 ["Third Claim For Relief"]) and intentional abuse of process (id. 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 & Gilson, 294 AD2d 93, 99 [granting amendment would "improperly circumvent the statute of limitations' bar on these claims"]; see also Cannon v State of New York, 163 Misc 2d 623, 625-626 )[3]

Accordingly, Claimant's motion is denied.

June 12, 2003
Albany, New York

Judge of the Court of Claims

[1] The proposed amended claim is exhibit 2.
[2] None of the various documents referenced nor the outcome of the parole revocation hearing is provided by the Claimant, who, at the present time, is incarcerated.
[3] Whether the proposed amendment has merit is not reached; however, the Court notes that conclusory allegations will not support a claim or demonstrate its proposed merit ( see Curtin v Community Health Plan, 276 AD2d 884, 886; see also Nieblas v State of New York, Read, P.J., Claim No.: 103210, Motion No. M-64145, December 7, 2001 [unpublished decision]).