New York State Court of Claims

New York State Court of Claims

VELASQUEZ v. THE STATE OF NEW YORK, #2005-019-562, Claim No. 110868, Motion No. M-70527


Synopsis


Claimant's motion to amend his claim is granted.

Case Information

UID:
2005-019-562
Claimant(s):
EDUARDO VELASQUEZ
Claimant short name:
VELASQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110868
Motion number(s):
M-70527
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
EDUARDO VELASQUEZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 29, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 the motion.

This claim was filed with the Clerk of the Court on May 9, 2005. The State filed a verified answer on May 31, 2005. The claim alleges that a notice of intention was served on March 28, 2005 (Claim, ¶ 13). Claimant alleges that he was assaulted by an unknown assailant at Elmira Correctional Facility (hereinafter "Elmira") on February 12, 2005. More specifically, claimant alleges that the State was negligent in providing only one correction officer to supervise between 50 and 70 inmates returning to their housing units. Now, claimant seeks to add a single paragraph to his claim to include allegations regarding the State's failure to comply with directive #4910 regarding the use of metal detectors and/or pat frisks to uncover contraband such as the weapon used in his assault.


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 request to expand the factual allegations regarding his claim. More specifically, the State argues the new allegations are better suited to inclusion in a bill of particulars and "[f]it within the framework previously established in the original claim." (Affirmation of Geoffrey B. Rossi, AAG, ¶ 10). However, the State has failed to articulate how it would be prejudiced by allowing the proposed amendment. Consequently, the court finds no prejudice to the State in allowing claimant to expand the factual allegations pertaining to his alleged assault as set forth in the proposed amended claim.


In view of the foregoing, it is ORDERED, that claimant's motion to amend his claim, Motion No. M-70527, is GRANTED. 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.



August 29, 2005
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 May 9, 2005.
  2. Verified Answer, filed May 31, 2005.
  3. Notice of Motion No. M-70527, dated July 26, 2005, and filed August 1, 2005.
  4. Affidavit of Eduardo Velasquez, in support of motion, sworn to July 26, 2005, with attached exhibits.
  5. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated August 19, 2005, and filed August 22, 2005, with attached exhibits.