New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK, #2007-015-163, Claim No. 110486, Motion No. M-72603


Claimant's motion to amend claim to include additional factual support for his negligence cause of action was granted.

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:
Devon Hunter, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 26, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Great Meadow Correctional Facility, moves pro se to amend his claim pursuant to CPLR 3025(b) to include additional factual support for his negligence cause of action. The original claim alleges that on November 22, 2004 the defendant negligently exposed the claimant to an accidental discharge of tear gas in the mess hall of the Great Meadow Correctional Facility. The claim also asserts a failure to provide appropriate and timely medical treatment following the incident.

The proposed amended claim alleges that an employee of the defendant failed to properly supervise the work of certain independent contractors retained for the purpose of disabling a console which controlled the tear gas system. As amended, the claim would assert that negligent performance of the work resulted in the release of gas into the facility mess hall.

The proposed claim also adds legal authority in support of the previously pled contention that the defendant's delay in treatment exacerbated his injuries.

Section 206.7(b) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR 3025, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it." CPLR 3025(b) provides that "a party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of the parties..." .

It is well settled that leave to amend a pleading “ 'shall be freely given' absent prejudice or

surprise resulting directly from the delay” (McCaskey, Davies and Assoc., Inc. v New York City Health and Hospitals Corp., 59 NY2d 755,757 [1983], quoting CPLR 3025[b]). To defeat a motion to amend, the opponent of the motion must show that it would be “significantly prejudiced” by the amendment (Garrison v Wm. H. Clark Municipal Equipment, Inc., 239 AD2d 742, 742 [1997]). “Prejudice in this context means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position” (Garrison v Wm. H. Clark Municipal Equipment, Inc., supra, 239 AD2d 742-743, quoting Pritzakis v Sbarra, 201 AD2d 797, 799 [1994]; see also Chiapperini v Grossinger’s Hotel, 176 AD2d 1048, 1049 [3d Dept 1991]; Smith v Industrial Leasing Corp., 124 AD2d 413, 414 [1986][ultimate test is whether the opponent of the motion to amend has suffered undue prejudice]).

Where the opponent of the motion was aware of the facts which form the basis for the amendment, prejudice can rarely be demonstrated (Morris v Crawford, 281 AD2d 805, 806 [2001]; Chiapperini v Grossinger’s Hotel, supra, 176 AD2d at 1049). This is especially true where a party does not seek to add a new theory of liability, but is simply expanding upon, amplifying and further detailing the allegations of negligence and injuries that are set forth in the original pleadings (Portnow v Shelter Rock Public Library, 125 AD2d 382, 383 [1986]; Hauch v Padula, 114 AD2d 807 [1985]). Even the addition of a new theory of law does not bar the granting of leave to amend where the new theory is based upon facts known to the defendant (Smith v Industrial Leasing Corp., 124 AD2d 413, 414 [1986], citing Stuart v Board of Directors of Police Benevolent Ass’n. of N.Y. State Police, 86 AD2d 721 [1982], appeal dismissed 56 NY2d 807 [1982]).

Here, the claimant seeks to amplify the allegations of negligence in the original claim to include the contention that the defendant is liable for the acts of its contractors because it supervised and controlled their work involving the injury-producing instrumentality. No new theory of liability is alleged and the facts and circumstances set forth by way of amendment arise from the facts and occurrences previously pled.

The defendant contends in opposition to the motion that leave to amend pursuant to CPLR 3025(b) is inappropriate because no additional subsequent transactions or occurrences are alleged. As set forth above, however, absent prejudice or surprise, leave to amend a pleading should be freely granted.

Based on the foregoing, the claimant's motion to amend his claim is granted and the claimant is directed to file and serve his amended claim in the form proposed within forty-five days of the date on which this decision and order is filed.

March 26, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated November 29, 2006;
  2. Affidavit of Devon Hunter sworn to November 29, 2006 with exhibits;
  3. Affirmation of Kevan J. Acton dated December 14, 2006