New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2005-032-001, Claim No. 108577, Motion No. M-69008


A motion for permission to late file is unnecessary where the State did not raise an affirmative defense of improper service or rebut claimant's factual statements that the claim was timely served Although leave to amend is to be freely given, proposed amendments that would set forth legally meritless causes of action will be denied.

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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Before he retained counsel, claimant Kevin Rivera filed a pro se claim alleging that on August 30, 2003,[1] as he was returning from the Family Reunion program at Shawangunk Correctional Facility, he was subjected to a routine search and the contents of a bottle of muslim oil was confiscated and tested, with claimant's permission. He was almost immediately placed in keeplock and shortly thereafter charged with possession of 2 grams of liquid morphine. The misbehavior charges against him were dismissed at a Superintendent's hearing held on September 12, 2003. According to claimant, it was determined that the test had been improperly conducted and the substance contained no morphine. Claimant also alleges that the Department of Correctional Services (DOCS) "even pursued the false charges in local criminal court" (Plasse affirmation, Exhibit A [Claim No. 108577]). In its answer (id., Exhibit B), counsel for defendant raised a number of affirmative defenses, among them a jurisdictional defense that the claim was untimely because "neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim, as required by Court of Claims Act, Sections 10(3) and 11" (answer, ¶9).

Counsel for claimant, who was retained after the claim was filed and served, states in his affirmation that, according to claimant's affidavit of service, the claim was mailed to the Court of Claims and the Office of the Attorney General on November 24, 2003. This date is less than ninety days after the earliest possible date of accrual and the earliest date mentioned in the claim, August 30, 2003. The Clerk's receipt of the claim on November 26, 2003 provides confirmation of this fact. In addition, defense counsel does not dispute this easily verifiable assertion made by his opponent. The Court concludes, therefore, that the claim was timely served as well as timely filed.

With respect to the manner of service, claimant's counsel states that he has been unable either to locate proof of the manner in which the claim was served on the State or to gain information about the manner of service from the Assistant Attorney General handling this case. In opposing the instant motion, counsel for defendant continues to avoid providing information about the manner in which that claim was served, although such information would be readily available to him. From this it may be assumed that the claim was properly served. In any event, this claim could not be dismissed for improper service because defendant did not raise the issue in either its answer or in a pre-answer motion, as required by section 11(c) of the Court of Claims Act.

In light of the uncertainty about the manner of service, claimant brought this motion for either permission to amend the claim already filed or, if that claim was not properly served, to obtain permission to file an untimely claim (Plasse affirmation, ¶ 4). Inasmuch as there is no need to consider the issue of late-filing, the Court will address only the request to amend.

The proposed amended claim (id., Exhibit I) adds a few factual allegations, allegations about facts that would be well known to the defendant and thus neither surprising nor prejudicial. It is alleged that the substance in the bottle confiscated by prison officials was tested by a Sergeant Brooks, and that the misbehavior charges were dismissed on September 12, 2003, when it was determined that the test had been improperly conducted and the substance did not contain any morphine. The proposed amended claim also contains additional facts about the criminal charges that were brought against claimant on September 16, 2003, in the Local Criminal Court, Town of Shawangunk. Claimant was charged with possession of a controlled substance and promoting prison contraband, but these charges were dismissed on April 21, 2004 when testing by the New York State Police also determined that there were no illegal drugs in the confiscated substance.
The original claim does not identify the nature of the cause of action being asserted, other than to allege that the charges against him were filed in retaliation for an earlier lawsuit brought in the Court of Claims. The proposed amended claim, on the other hand, sets forth four specific causes of action: 1) false imprisonment (wrongful confinement) for thirteen days, 2) malicious prosecution with respect to the prison disciplinary charges, 3) malicious prosecution with respect to the criminal charges that were filed against claimant, and 4) intentional infliction of emotional distress.
A court is granted considerable discretion when faced with a motion to amend a pleading and is instructed that such leave should be "freely given" (CPLR 3025[b]); Branch v Green, 265 AD2d 646 [3d Dept 1999]) unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise (Bastian v State of New York, 8 AD3d 764 [3d Dept 2004]). This is true even where there has been protracted delay, as long as any new legal theory is based upon the same facts that were set forth in the original pleading (Matter of Trader v State of New York, 259 AD2d 951[4th Dept 1999]; Garrison v Clark Mun. Equip., 239 AD2d 742 [3d Dept 1997]) and amendment would cause no significant prejudice to the opposing party (Danise v Agway Energy Prods., 255 AD2d 731 [3d Dept 1998]; Seaman Corp. v Binghamton Sav. Bank, 243 AD2d 1027 [3d Dept 1997]).
The decision cited by the State's counsel, for the proposition that delay, the absence of a satisfactory excuse for the delay and prejudice to the opposing party justifies denying a motion to amend (Thibeault v Palma, 266 AD2d 616 [3d Dept 1999]) involved circumstances that were very different from the situation presented here. In Thibeault, the proposed amendment, which was sought five years after the action had been commenced, constituted a "significant expansion" of the original claim's allegations, and, in the appellate court's view, that original claim had not adequately apprised the defendants of the many constitutional causes of action or defamation claims that the plaintiffs sought to add by way of amendment. Moreover, the Thibeault decision was the result of appellate review of a trial court's ruling denying the motion to amend, and the Third Department emphasized that the exercise of a lower court's discretion "should not be lightly set aside" (266 AD2d at 617).
Because permission to amend should not be granted when a proposed additional cause of action does not set forth a legally cognizable cause of action, the Court will not allow three of the four causes of action set forth in the proposed amended claim. Prison officials enjoy absolute immunity in connection with their actions in commencing disciplinary charges against inmates and in conducting hearings on those charges, so long as there is compliance with the applicable rules and regulations (Arteaga v State of New York, 72 NY2d 212 [1988]). Claimant does not allege that there were violations of any applicable rules or regulations, only that the charges were known to be false at the time they were made. The Court of Appeals recognized that improper motives could conceivably lead to the imposition of prison disciplinary charges but concluded that, nevertheless, ‘[i]n carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim" (id., at 219). The proposed first and second causes of action, therefore, are without legal merit and that portion of the amendment should not be allowed.
In addition, public policy prohibits claims for the intentional infliction of emotional distress from being brought against the State of New York (Brown v State of New York, 125 AD2d 750 [3d Dept 1986], lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496 [2d Dept 1984]; De Lesline v State of New York, 91 AD2d 785 [3d Dept 1982], lv denied 58 NY2d 610). Thus, the fourth cause of action contained in the proposed amended claim is also without merit.
The question raised by the third cause of action is less clear: could the State be liable for the criminal charges that were commenced against the claimant? Since this is at least theoretically possible, depending on the facts that are developed during discovery, the proposed amendment will be allowed. The State's role, whatever it may have been, in bringing about those criminal charges was clearly referenced in the original claim.
Claimant's motion is granted, therefore, to the extent that an amended claim may be filed and served that sets forth the additional factual allegations, none of which would come as a surprise to the State, and the third proposed cause of action and that corrects the date referred to in Footnote 1. Such filing and service shall be accomplished within sixty (60) days after the date this Decision and Order is file-stamped. The motion is denied with respect to the first, second and fourth causes of action. In addition, the Court determines the claim was timely and properly served on defendant.

February 7, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to amend Claim No. 108577 or, alternatively, for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Andrew F. Plasse Esq., with annexed Exhibits;

2. Affirmation in Opposition of Saul Aronson, Esq., AAG;

Filed papers: Claim; Answer

[1]Although the claim refers to 2002 in paragraph 2, it is clear that claimant meant 2003.