New York State Court of Claims

New York State Court of Claims

HOLMES v. THE STATE OF NEW YORK, #2004-015-401, Claim No. 108362, Motion No. M-68047


Court granted unopposed motion for leave to amend the claim in this action based upon alleged breach of a construction contract.

Case Information

HOLMES CONTRACTING, INC. The Court sua sponte amends the caption of this claim to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte amends the caption of this claim to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Abitbol, Cherry & Salanic, LLPGilles R.R. Abitbol, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Arthur Patane, Esquire
Assistant Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
April 30, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion pursuant to CPLR 3025 and Rule 206.7 (b) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.7 (b)) for leave of Court to amend the previously filed claim is granted. Claimant filed a claim seeking to recover $105,622.30 plus interest as the sum which remains due on a construction contract entered into by claimant and the New York State Office of Parks, Recreation and Historic Preservation in connection with Contract No. D002971 entitled Breakneck Sewer System, Breakneck Pond Sewer Treatment Plant, Harriman State Park, Town of Haverstraw, Rockland County. Alternatively the original claim seeks $107,161.85 in damages for additional and unanticipated costs for extra work required on the project. The original verified claim was filed on October 6, 2003 and a verified answer was filed on November 28, 2003. Subsequently, a consent to change attorneys dated December 6, 2003 was filed with the Clerk of the Court on December 23, 2003.

Claimant's new attorney, Gilles R.R. Abitbol, now moves to amend the original ten (10) page claim on the ground that "the accounting of the extra work provided by Plaintiff (sic) is not matching the itemization provided by the New York State Office of Parks, Recreation and Historic Preservation in a letter explaining the amounts allowed to be paid to the Plaintiff." Mr. Abitbol's affirmation[1] asserts that "[t]he proposed amended Claim will therefore for each item set forth the basis of the computation of the Defendant and the different variation to the initial bid that the Plaintiff had to accomplish in order to fulfill his (sic) part of the contract Plaintiff bid on."

The proposed amended claim attached to the motion papers is eighty-one (81) pages long and does not include a proposed verification by the claimant's corporate representative or claimant's attorney.

The Court received a written request from Assistant Attorney General Cornelia Mogor dated February 18, 2004 seeking an adjournment of the return date of the motion to allow for a response by Arthur Patane, the Assistant Attorney General assigned to the matter. Although the Court granted that request Assistant Attorney General Patane neither opposed the motion nor otherwise informed the Court that the motion would not be opposed.

In the case of Nunez v State of New York, UID #2002-030-525[2], Ct Cl, June 26, 2002, [Claim No. 104574, Motion No. M-65275], unreported, Judge Scuccimarra succinctly observed that:
A pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) of the Civil Practice Law and Rules. See, 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an 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. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency.

While the proposed amended claim attached to the motion contains an over-abundance of information not essential to a clear and concise presentation of the facts giving rise to the defendant's alleged liability, the defendant has failed to oppose the motion on that or any other basis. Consequently, the Court in its discretion grants claimant's motion.

Claimant's attorney is directed to serve the amended claim as proposed and a verification upon the Attorney General by regular mail (see, CPLR 2103 [b]); Rohany v State of New York, 144 Misc 2d 940) and to file the amended verified claim along with an affidavit of service with the Clerk of the Court within thirty days of the filing date of this decision and order (see, Rodriguez v State of New York, 153 Misc 2d 363, 365). The defendant shall have 40 days thereafter to serve and file its answer to the amended claim as provided in 22 NYCRR § 206.7 [b].

April 30, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 12, 2004;
  2. "Affirmation" of Gilles R.R. Abitbol, with exhibits.

[1]The document is sworn to before a notary public but is not otherwise in affidavit form hence the Court has chosen to treat it as an attorney's affirmation pursuant to CPLR 2106.
[2]Recent Court of Claims decisions can be located on the internet at .