Claimant, an inmate appearing pro se, moves to amend his claim pursuant to CPLR
3025 (b). The State of New York (hereinafter "State") opposes the motion.
This claim was filed and served on June 21, 2004. The State filed a Verified
Answer on July 23, 2004. Claimant then filed a Supplemental Claim on July 19,
2004 (hereinafter "First Supplemental Claim"). The State filed a Verified
Answer to the First Supplemental Claim on August 16, 2004. Then, only 7 days
thereafter on August 23, 2004, claimant filed this instant motion to serve
another supplemental claim, which the court will refer to as the "Proposed
Second Supplemental Claim."
It is well-settled that each litigant is afforded the opportunity to amend a
claim once as of course within specified time periods. (CPLR 3025 [a]). Here,
claimant used up his amendment as of course by the filing of his First
Supplemental Claim on July 19, 2004. As such, claimant properly seeks leave of
the court to file his Proposed Second Supplemental Claim. There is no doubt
that motions to amend shall be freely given and are directed to the sound
discretion of the court. (CPLR 3025 [b]; Uniform Rules for the Court of Claims
[22 NYCRR] § 206.7 [b]; Murray v City of New York, 43 NY2d 400,
404-405, rearg dismissed 45 NY2d 966). That having been said, however,
the court may not allow the amendment of a claim with a cause of action that is
palpably improper and insufficient as a matter of law. (Harding v
Filancia, 144 AD2d 538). The court will compare claimant's original claim
(filed June 21, 2004) to his First Supplemental Claim (filed July 19, 2004) and
Proposed Second Supplemental Claim.
The original claim contains various complaints regarding operations at
Southport Correctional Facility beginning in April 2004 including, but not
limited to, delay in dispensing prescription medicine; delay in providing
medically required diet; improper restrictions on inmate hairstyles; and
improper and/or delay in investigating inmate grievances.
The First Supplemental Claim contains two bailment claims identified as
facility claims # 630-29-04 and 630-54-04 accruing on June 16 and 30, 2004.
According to the First Supplemental Claim, facility claim #630-29-04 involved
property allegedly lost during claimant's transfer from Green Haven to
Southport, while facility claim #630-54-04 relates to a damaged mother's day
card. Further, the First Supplemental Claim alleges that the underlying
investigation and subsequent appeals of those two bailment claims were conducted
in violation of facility rules and regulations.
The Proposed Second Supplemental Claim repeats all the allegations contained in
the First Supplemental Claim and adds yet a third facility claim identified as
facility claim # 630-42-04. (Proposed Second Supplemental Claim, ¶ ¶
A, C, & D).
Additionally, claimant has
increased the ad damnum clause from $100 to $200.
In the first instance, the court cannot ascertain whether the new facility
claim identified as #630-42-04 in the Proposed Second Supplemental Claim
involves the same or different property than facility claim #630-29-04 contained
in the First Supplemental Claim since both are noted as relating to claimant's
Green Haven to Southport transfer.
event, even assuming the Proposed Second Supplemental Claim containing facility
claim #630-42-04 involves different property than the First Supplemental Claim
with facility claim #630-29-04, claimant has not demonstrated whether he has
exhausted his administrative remedies regarding facility claim #630-42-04
pursuant to CCA 10 (9). As such, the court cannot ascertain whether the
Proposed Second Supplemental Claim contains a valid cause of action or whether
such cause of action would be premature under CCA 10 (9).
Consequently, for the reasons stated above, it is ORDERED that claimant's
motion, Motion No. M-68999, to amend this claim is DENIED without
Claim, filed June 21, 2004.
Supplemental Claim, filed July 19, 2004
Verified Answer, filed July 23, 2004.
Verified Answer to Supplemental Claim, dated August 13, 2004.
Notice of Motion No. M-68999, dated August 18, 2004, and filed August 23,
Affirmation of Shawn Green, in support of motion, sworn to August 18,
Memorandum of Law, of Shawn Green, in support of motion, dated August 18,
Proposed Supplemental Claim, sworn to August 18, 2004.
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September
17, 2004, and filed September 20, 2004, with attached exhibits.