4,5 Filed Papers: Claim, Answer
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
A pleading in the Court of Claims may be amended in accordance with the
provisions of Civil Practice Law and Rules § 3025(b). See 22 NYCRR
§ 206.7 (b). Although leave to amend should be freely given, the
determination is left to the sound discretion of the Court. The Court should
consider whether there would be any prejudice to the opposing party; any effect
an amendment would have on the orderly prosecution of the action; whether the
moving party unduly delayed in seeking to add the new allegations; and whether
the proposed amendment is palpably improper or insufficient as a matter of law.
Where the proposed amendment lacks merit as a matter of law, or where amendment
would be immaterial, among other things, the Court should deny leave based upon
such legal insufficiency. A copy of the proposed amended Claim should generally
be included, as well as any factual affidavits or exhibits that ". . .
unequivocally make out a prima facie basis for the claim . . . or other matter
now sought to be added . . ." [Commentary C3025:11; Civil Practice Law and Rules
Kenneth Cunningham, the Claimant herein, alleges in Claim number 108851 that
defendant's agents negligently denied him a funeral visit to his grandmother's
funeral or wake held on or about October 17, 2003 when he was an inmate at Green
Haven Correctional Facility. Specifically, he claims that the paperwork
required to allow his attendance and give him security clearance, prepared by
the protestant chaplain, was lost by the same individual. Various departmental
directives are alleged to have been violated. Claimant filed a grievance which
was denied on or about December 29, 2003. The claim does not contain an ad
The present claim was served upon the Attorney General on or about January 22,
2004, and filed in the office of the Chief Clerk of the Court of Claims on
January 30, 2004. In addition to a general denial in its Verified Answer, the
Defendant raises the Affirmative Defenses of Claimant's alleged assumption of
risk and Defendant's qualified immunity. The Answer was filed on March 1, 2004.
The time within which to amend or supplement the pleading as of right has
expired. See 22 NYCRR § 206.7(b); Civil Practice Law and Rules
In the proposed amended claim, the same allegations are made, although they are
presented in paragraphs that are numbered slightly differently. There is an
additional allegation that Claimant suffered mental pain and anguish and sought
psychiatric intervention. The proposed amended claim also contains a
"wherefore" clause seeking a trial by jury and unspecified damages.
As noted, the Defendant has not submitted any opposition to the motion.
There is no trial by jury in the Court of Claims [See Court of Claims
Act §12(3); Graham v Stillman, 100 AD2d 893 (2d Dept 1984)], nor may
a Claimant secure equitable relief except in very limited circumstances not
applicable here. See e.g. Court of Claims Act §9(9-a).
The amendment sought does not repair what is essentially a defective pleading.
Court of Claims Act §11(b) provides in pertinent part that a " . . . claim
shall state the time when and place where such claim arose, the nature of same,
and the items of damage or injuries claimed to have been sustained and the total
sum claimed . . . " The claim already filed here does not specify the damages
sought, nor does the proposed amended claim. The proposed amended claim also
asks for relief that cannot be obtained in this Court as noted.
Accordingly, the amendment proposed here is palpably improper and insufficient
as a matter of law, and Claimant's motion number M-68474 is in all respects