Claimant, a pro se inmate, moves to amend his claim pursuant to CPLR 3025 (b).
The State of New York (hereinafter "State") opposes the motion.
This claim relates to a slip and fall that occurred at Southport Correctional
Facility (hereinafter "Facility") on February 2, 1999. More specifically,
claimant alleges that he was outside in one of the recreational cages of the
Facility when he was instructed to return to his cell. Claimant alleges that he
was handcuffed, told to turn around and step over a 4-6 inch piece of metal, but
when his foot came down it slipped on some ice causing him to fall injuring his
head, shoulder and back. (Claim, ¶ 5).
By way of this motion, claimant does not seek to amend his claim in the
conventional sense, but rather requests permission to use two documents at trial
and/or to register his objections to their contents based upon allegations of
forgery. The State argues that there is no requirement that a claimant submit
each and every piece of potential trial evidence as an exhibit to a claim. In
this court's view, this is exactly what claimant is attempting to do. Moreover,
to the extent that claimant questions the validity and/or veracity of the
contents of those documents, those are issues that are best left for trial
regarding their admissibility and/or weight. In any event, claimant has not
articulated, nor has this court found, any meritorious reason for necessitating
the submission of these documents as part of the claim itself.
That having been said, upon review of the pleadings in this matter the court
notes that the State raised as its first affirmative defense a jurisdictional
issue relative to improper service of this claim in the first instance.
(State's Verified Answer, ¶ 6).
The court has reviewed claimant's affidavit of service attached to the claim.
The affidavit of service indicates that the claim was placed in "a Mail Box here
at the [Southport Correctional Facility] for delivery", but does not recite
whether is was served by certified mail, return receipt requested and was sworn
to on October 15, 1999. (Claimant's Affidavit of Service). Also attached to
the Affidavit of Service is a photocopy of what appears to be a green receipt
card stamped as received by the Office of the Attorney General on March 5, 1999.
Based on the time difference between these two dates, it does not appear that
this green receipt card relates to the claim that was not signed until October
1999. Accordingly, the court is unable to determine on this record whether
claimant has satisfied the requirements of CCA 10 and 11 relative to the service
of his claim. As such, the court has this same date issued an Order to Show
Cause directing the parties to submit written statements and any relevant proof
to establish whether the claim was timely and properly served on the Office of
the Attorney General in accordance with the requirements of Court of Claims Act
In view of the foregoing, it is ORDERED that claimant's motion, Motion No.
M-67979, to amend Claim No. 101592, is DENIED.