New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2007-015-170, Claim No. 111167-A, Motion Nos. M-72544, M-72575


Claimant's motion to amend claim to add claims unrelated to those originally asserted was denied. Proposed claim was not provided and it was impossible to determine the merit of the claims sought to be added or the date they accrued.

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):
M-72544, M-72575
Cross-motion number(s):

Claimant’s attorney:
Mark Mitchell, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


In two motions the claimant moves pro se to supplement his claim. In the first motion (motion number M-72544) claimant seeks to add a claim for medical malpractice and in the second motion (motion number M-72575) claimant seeks to add a claim for alleged constitutional violations arising out of the failure to permit him access to legal materials and the courts. Both motions are denied. The original claim, filed on July 21, 2005, alleges the following bases of liability:
(1) Negligent[ly] transferring claimant, (2), Failure to properly monitor and reserve claimants [sic] right to protective custody, (3), Transferr [sic] of claimant was motivated by desire of correctional officials to punish claimant for exercising his constitutionally protected rights, (4), False imprisonment, wrongful excessive confinement, (5), Deliberate Indifference to claimant's [sic] Mental Health Needs.

Although no proposed supplemental claim was submitted, claimant sets forth the following as the basis for his first proposed supplemental claim:
The prison medical staff refuses to [give] me the proper medication that would cure the pain & suffering of my sciatica nerve within 8-to-24 hours. And instead [gave] me medication that will take about two months to cure said pain. And the prison officials are violating the prescribed bedrest (see Notice of Motion for Supplemental Claim).

Claimant asserts the following as the basis for his second proposed supplemental claim:
[C]laimant is being denied access to legal materials in violation of his constitutional rights to meaningful access to legal materials and the courts (see ¶ 2 of Notice of Motion for A Second Supplemental Claim).

Claimant failed to state in support of either motion the date the claims accrued, or the specifics of the claims.

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. 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. Leave shall be freely given upon such terms as may be just..." . Leave to amend a pleading shall be freely given unless the proposed amendment plainly lacks merit or would cause the nonmoving party to suffer prejudice or unfair surprise (Bastian v State of New York, 8 AD3d 764, 765 [2004]; McCaskey, Davies and Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]). Here, the requested amendments set forth new claims unrelated to the causes of action asserted in the original claim and it is impossible to discern the merit of the claims or the date they accrued from the limited information provided (see Marsala v State of New York, 41 AD2d 878, [1973]; cf., Bastian v State of New York, supra).

Section 11(b) of the Court of Claims Act requires that the claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed". These pleading requirements are jurisdictional in nature and are to be strictly construed (Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003] ) [failure to allege the times when and the place where the claims arose, the items of damage sustained or the total sum claimed warranted dismissal]).

Here, the claimant has failed to submit a proposed amended claim and none of the required particulars are set forth in the motions. In view of these deficiencies, the motions are denied.

March 30, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
Motion No. M- 72544
  1. Notice of motion for supplemental claim dated November 22, 2006;
  2. Unsworn "Affidavit-Declaration" in support of supplemental claim dated November 22, 2006;

Motion No. M-72575

  1. Notice of motion for a second supplemental claim dated November 24, 2006;
  2. Declaration in support of second motion for a supplemental claim dated November 24, 2006.

Motion Nos. M-72544 and M-72575

  1. Affidavit in opposition of Dennis M. Acton sworn to December 8, 2006.