New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2004-019-579, Claim No. 109512, Motion No. M-68999


Synopsis


Claimant's motion to amend claim is denied without prejudice.

Case Information

UID:
2004-019-579
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109512
Motion number(s):
M-68999
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAWN GREEN, 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:
September 27, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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).[1] 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.[2] In any 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 prejudice.


September 27, 2004
Binghamton, New York

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


The court has considered the following papers in connection with this motion:

  1. Claim, filed June 21, 2004.
  2. Supplemental Claim, filed July 19, 2004
  3. Verified Answer, filed July 23, 2004.
  4. Verified Answer to Supplemental Claim, dated August 13, 2004.
  5. Notice of Motion No. M-68999, dated August 18, 2004, and filed August 23, 2004.
  6. Affirmation of Shawn Green, in support of motion, sworn to August 18, 2004.
  7. Memorandum of Law, of Shawn Green, in support of motion, dated August 18, 2004.
  8. Proposed Supplemental Claim, sworn to August 18, 2004.
  9. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September 17, 2004, and filed September 20, 2004, with attached exhibits.


[1]The paragraphs in claimant's pleadings are not numbered/lettered sequentially, but rather in an alternating sequence of 1, 2, A, 3, 4, B, etc.
[2]Claimant has not submitted any underlying documentation in relation to any of these underlying facility grievances.