New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-524, Claim No. 107834, Motion No. M-67986


Synopsis


Case Information

UID:
2004-019-524
Claimant(s):
MICHAEL S. JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107834
Motion number(s):
M-67986
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MICHAEL S. JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 1, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 motion.

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, ¶ 4).


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 amendment.


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. 2002-015-272]).[1] 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.


March 1, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Unreported decisions from the Court of Claims are available via the Internet at