New York State Court of Claims

New York State Court of Claims

AHLERS v. THE STATE OF NEW YORK, #2005-015-018, Claim No. 105294, Motion No. M-69736


Claimant's motion to amend claim to allege that cardiac surgery was necessitated by his exposure to second hand smoke denied since it was based solely on his own conclusory allegations and references to unspecified research of the CDC and the American Heart Association.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Karl Ahlers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to amend his claim to include allegations that a medical condition requiring cardiac surgery was caused by his exposure to second-hand smoke while incarcerated in a Department of Correctional Facility Services (DOCS) facility is denied. The claim herein, which was filed with the Court on December 4, 2001, alleges that claimant was exposed to second-hand smoke while incarcerated in the D-1 Housing Unit at Arthur Kill Correctional Facility in Staten Island, New York. Specifically the claimant, who is allergic to tobacco smoke, asserts that the adoption by DOCS of a smoke-free policy which permitted smoking only in the "sleeping quarters of the medium security facilities" constituted "deliberate indifference" to the dangers posed to the claimant and others by environmental tobacco smoke (ETS).

The instant motion seeks to amend the claim to allege that surgery the claimant underwent on June 22, 2005 to relieve arterial blockages was necessitated by claimant's exposure to second-hand smoke. The amendment would also assert that the progressive lung disease from which the claimant currently suffers is a result of his exposure to ETS.

Defendant opposed the motion on the grounds that the application is not supported by a medical affidavit and that claimant unduly delayed seeking permission to amend the claim filed in 2001.

While leave to amend a pleading should be freely given the decision as to whether to grant leave is generally left to the sound discretion of the trial court (see Edenwald Contr. Co. v City of New York, 60 NY2d 957). "In determining whether to grant leave to amend a pleading, a court must examine the underlying merit of the causes of action asserted therein, since to do otherwise would be wasteful of judicial resources (see, Wieder v Skala, 168 AD2d 355)" (McKiernan v McKiernan, 207 AD2d 825; see CFJ Assocs. of N.Y. v Hanson Indus., 260 AD2d 917, 919). It is settled that "[w]hen seeking leave to amend a pleading, it is incumbent upon a movant to make 'some evidentiary showing that the claim can be supported' (Cushman & Wakefield v John David, Inc., 25 AD2d 133, 135)" (Mathiesen v Mead, 168 AD2d 736, 737).

Where, as here, the movant alleges that his coronary and pulmonary problems are attributable to his involuntary exposure to second-hand smoke some medical evidence tending to support the existence of a causative link between ETS and claimant's medical problems must be provided (see Bastian v State of New York, 8 AD3d 764; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:11 at 360). Neither claimant's conclusory allegations of such a connection nor his references to unspecified research by the Center for Disease Control or the American Heart Association are sufficient to demonstrate the merit of the proposed amendment (see Miller v Goord, 1 AD3d 647, Krouner v Travis, 290 AD2d 917, 918). Claimant's affidavit in support of the motion is patently insufficient, even when viewed liberally, to establish that the proposed amendment has any merit whatsoever.

Claimant's motion to amend the claim is denied.

June 3, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 19, 2005;
  2. Affidavit of Karl Ahlers sworn to January 19, 2005;
  3. Affirmation of Glenn C. King dated March 9, 2005.