Claimant, an inmate proceeding pro se, moves for an order to amend his claim
pursuant to CPLR 3025 (b). The State of New York (hereinafter "State") opposes
This claim was filed with the Clerk of the Court on August 9, 2004. The State
filed a verified answer on August 16, 2004. The claim alleges that a notice of
intention was served on March 1, 2004 (Claim, ¶ 6), although the State
disputes this date and indicates that it received the notice of intention on
June 14, 2004. (Affirmation of Joseph F. Romani, AAG, ¶ 6; State's Exhibit
The original claim contains two causes of action. The first cause of action
alleges a bailment claim that arose between December 24, 2003 through December
30, 2003 at Southport Correctional Facility (hereinafter "Southport").
Claimant's second cause of action alleges that he was assaulted by correction
officers at Southport on December 30, 2003. Claimant's proposed third cause of
action is stated in terms of medical negligence based upon allegations that
correction officers ignored his pleas for sick call the night of the alleged
attack and left him lying on the floor of his prison cell in obvious physical
distress. ("First Amended Claim For Damages" [hereinafter "Proposed Amended
Claim"], ¶ 53). Claimant's proposed fourth cause of action alleges medical
malpractice for inadequate treatment and diagnose of his injuries to his left
foot and ankle resulting from the assault, more specifically relating to the
medical examinations performed by Dr. Alves on December 31, 2003 and March 12,
2004. (Proposed Amended Claim, ¶ 46; Notice of Intention attached as
State's Exhibit B, ¶ ¶ 2-7). By way of this motion, claimant seeks to
amend his original claim by expanding the factual allegations pertaining to the
two original causes of action (bailment and assault), as well as by adding the
third and fourth proposed causes of action.
It is well-settled that "[p]rovided that there is no prejudice to the nonmoving
party and the amendment is not plainly lacking in merit, leave to amend
pleadings under CPLR 3025 (b) should be freely granted [citation omitted]."
(State of New York v Ladd's Gas Sta., 198 AD2d 654, 654; CPLR 3025 [b]).
The motion is directed to the sound discretion of the court. (Murray v City
of New York, 43 NY2d 400, 404-405, rearg dismissed, 45 NY2d 966).
The State objects to claimant's attempts to expand his first cause of action
which asserts a bailment claim. The State questions the proper accrual dates
and whether claimant pursued any administrative remedies as required by CCA 10
(9). That having been said, however, the court notes that the State's verified
answer does not contain any jurisdictional defenses. CCA 11 (c) dictates that
any jurisdictional defense is waived unless raised, with particularity, in the
responsive pleading. As such, the State waived the defense of untimeliness by
failing to raise the same in its verified answer. Consequently, the court finds
no prejudice to the State in allowing claimant to expand the factual allegations
pertaining to his first cause of action sounding in bailment.
The State also objects to claimant's request to expand the factual allegations
regarding his second cause of action which alleges he was assaulted by
correction officers at Southport on December 30, 2003. More specifically, the
State argues this cause of action is untimely because claimant has not
established that he timely served his notice of
Again, however, the court notes
that the State's verified answer does not contain any jurisdictional defense
and, as such, the State waived such defense by failing to raise the same, with
particularity, in the responsive pleading. (CCA 11 [c]). Consequently, the
court finds no prejudice to the State in allowing claimant to expand the factual
allegations pertaining to his second cause of action alleging assault.
With respect to the two new proposed causes of action, it is well-settled that
amendments may not be used to remedy a jurisdictional defect. (Grande v
State of New York, 160 Misc 2d 383, 385; Ferrer v State of New York,
172 Misc 2d 1, 7). Moreover, "[a] claim asserted in an amended pleading is
deemed to have been interposed at the time the claims in the original pleading
were interposed, unless the original pleading does not give notice of the
transactions, occurrences, or series of transactions or occurrences, to be
proved pursuant to the amended pleading." (CPLR 203 [f]).
Here, although the notice of intention alludes to inadequate medical treatment
it was not served on the State until June 14, 2004 and, as such, was untimely
with respect to a medical malpractice/negligence cause of action that accrued,
at the latest, on March 12, 2004.
original claim that was apparently served on July 15, 2004 and filed on August
9, 2004 did not contain any references to medical negligence or medical
malpractice causes of action. In fact, claimant states that he purposefully did
not originally include these medical claims because he wanted to see how his
treatment progressed. (Claimant's Memorandum of Law, p 3). Now, claimant seeks
to amend his claim with the medical negligence and medical malpractice causes of
action. However, claimant's proposed amendments regarding medical negligence
and medical malpractice involving medical personnel cannot relate back to the
original claim and thus take advantage of its timeliness, because the original
causes of action (bailment and assault) did not provide any notice of the
transactions or occurrences giving rise to the medical causes of action now
sought to be interposed. (Clark v Foley
, 240 AD2d 458, lv dismissed
91 NY2d 921). Consequently, the proposed amendment including medical
negligence and medical malpractice against the medical personnel at Southport
cannot be allowed because it sets forth new causes of actions which are untimely
in their own right and unrelated to the bailment and assault causes of action
involving the correctional officers at Southport contained in the original
claim. (Barnes v State of New York
, Ct Cl, April 28, 2000, Lane, J.,
Claim No. 98858, Motion No. M-61199 [UID No.
Parenthetically, the court notes that claimant may not be without a remedy with
respect to his proposed third and fourth causes of action, however, as he
appears to be within the time allowed to submit a motion for permission to file
and serve a late claim pursuant to CCA 10 (6) upon proper
In view of the foregoing, it is ORDERED, that claimant's motion to amend his
claim, Motion No. M-69978, is GRANTED IN PART with respect to permitting
claimant to expand the allegations regarding the first (bailment) and second
(assault) causes of action; and DENIED IN PART with respect to adding a proposed
third (medical negligence) and fourth (medical malpractice) cause of action.
The proposed amended claim shall be revised to omit the proposed third and
fourth causes of action. Claimant shall file an amended claim with the Clerk of
the Court and shall serve a copy of said amended claim upon the office of the
Attorney General by regular mail within sixty (60) days of the filing of this
Decision and Order with the Clerk of the Court.