New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2007-015-248, Claim No. 112597, Motion No. M-73840


Court granted claimant's motion to amend claim to add additional factual allegations that violation of prison policy which prohibits indoor smoking continued after the date the original claim was filed.

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:
Anthony G. Gill
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 30, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, moves pro se for an order permitting him to amend his claim pursuant to CPLR 3025 (b). The claim, filed on August 3, 2006, alleges that from May 18, 2006 through May 31, 2006 several correction officers repeatedly and continually smoked cigarettes at the B-8 gallery officer's desk and surrounding area at Great Meadow Correctional Facility in violation of a policy of the Department of Correctional Services ("DOCS") which prohibits indoor smoking[1]. Claimant alleges that the continuous smoking during this period permeated his nearby cell causing him pain and suffering. The claim alleges that the claimant was transferred from B-block on June 1, 2006. The proposed amended claim adds the allegations that on October 31, 2006 through November 6, 2006 the claimant was again exposed to second-hand cigarette smoke.

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 all 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 & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755,757 [1983], quoting CPLR 3025[b]). To defeat a motion to amend, the opponent must show that it would be “significantly prejudiced” by the amendment (Garrison v Clark Mun. Equip., 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 Clark Mun. Equip., supra, 239 AD2d 742-743, quoting Pritzakis v Sbarra, 201 AD2d 797, 799 [1994]; see also Chiapperini v Grossinger’s Hotel, 176 AD2d 1048 [1991]; Smith v Industrial Leasing Corp., 124 AD2d 413 [1986]).

Here, the claimant seeks to amend the claim to add additional incidents of cigarette smoking in violation of the DOCS' policy. No new theory of liability is alleged.

The defendant contends in opposition to the motion that the length of the claim (consisting of 43 paragraphs) and amended claim (consisting of 53 paragraphs) makes it impossible to identify which of the allegations the claimant seeks to add. While the claim and amended claim are lengthy, the Court finds that the amended claim is capable of being deciphered and the defendant has failed to establish prejudice or surprise resulting from the claimant's delay in seeking leave to amend. There being no other basis for denying the motion, the motion is granted.

Accordingly, it is hereby

ORDERED, that the claimant's motion to amend his claim is granted; and it is further

ORDERED, that the claimant is directed to serve his amended claim upon the Attorney General in the form proposed within 45 days of the date on which this Decision and Order is filed. Service by regular, first class mail shall be deemed sufficient service, and it is further

ORDERED, that the claimant shall file the original and two copies of the amended claim with the Clerk of the Court of Claims, together with his affidavit of service upon the Attorney General within 30 days of such service.

October 30, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 8, 2007;
  2. Affidavit of Anthony G. Gill sworn to August 8th, 2007 with exhibit;
  3. Affirmation of Saul Aronson dated September 12, 2007.

[1].The claim sets forth that the smoking occurred on a daily basis from May 18, 2006 through May 31, 2006 (exclusing May 26, 2006).