Claimant, a pro se inmate, moves for an order to amend his claim pursuant to
CPLR 3025 (b). The State of New York (hereinafter "State") opposes the
This claim alleges that claimant contracted tuberculosis while incarcerated at
Southport Correctional Facility due to the deliberate indifference of facility
officials regarding the sanitary conditions at said facility, as well as claims
of medical negligence regarding claimant's knee brace, and access to eye doctors
and dentists. By way of this motion, claimant seeks to add a new cause of
action relating to a burst blood vessel in claimant's eye on or about December
23, 2003. More specifically, claimant states that he has "[s]uffered vision
lost in his left eye do [sic] to medication taken for exposure to
Tuberculosis. Said medication INH (isonizid [sic] isonicotinic acid
hydrazide) which caused the damage to his eye." (Claimant's Affidavit, ¶
CPLR 3025 (b) directs that leave to amend should be freely given in the absence
of surprise or prejudice resulting from the delay, although the motion is
directed to the sound discretion of the court. (Murray v City of New
York, 43 NY2d 400, 404-405, rearg dismissed, 45 NY2d 966). 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). That having been said, the lack of prejudice or interference
with the orderly prosecution of a claim will not save an otherwise improper
As noted by the State, claimant has failed to submit a proposed amended claim.
It is well settled that upon a motion to amend the "[t]he trial court is obliged
to satisfy itself that the proposed claim has merit...." (CFJ Assocs. of
N.Y. v Hanson Indus.
, 260 AD2d 917, 919). Claimant's failure to submit a
proposed amended claim makes the court's task ever the more difficult.
(Brown v State of New York
, Ct Cl, July 1, 2002, Collins, J., Claim No.
103284, Motion No. M-64980 [UID No.
Nevertheless, the court will
review claimant's affidavit in the most liberal terms possible on this issue of
merit. Upon a motion for leave to amend, "[i]t is incumbent upon a movant to
make 'some evidentiary showing that the claim can be supported' [citation
omitted]." (Mathiesen v Mead
, 168 AD2d 736, 737). Here, claimant has
offered nothing in support of his motion to amend other than his own conclusory
allegations. Without more, this court finds that claimant has failed to
establish that his proposed amended cause of action has merit.
In view of the foregoing, it is ORDERED, that claimant's motion to amend his
claim, Motion No. M-67986, is DENIED.