New York State Court of Claims

New York State Court of Claims

CUNNINGHAM v. THE STATE OF NEW YORK , #2004-030-572, Claim No. 108851, Motion No. M-68474


Synopsis



Case Information

UID:
2004-030-572
Claimant(s):
KENNETH CUNNINGHAM
Claimant short name:
CUNNINGHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108851
Motion number(s):
M-68474
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
KENNETH CUNNINGHAM
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
September 9, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion to


amend his claim marked submitted without opposition on June 16, 2004:

1-3 Notice of Motion; Affidavit in Support by Kenneth Cunningham, Claimant; proposed Amended Claim

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 § 3025].

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 damnum clause.

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 §3025(a).

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 denied.

September 9, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims