For the reasons set forth below, Claimant’s motion to amend his Claim is
Claimant alleges that in August 2003, he was told that he would be transferred
from Dorm G-1 at Bare Hill Correctional Facility to Dorm E-2. Claimant contends
that he had been placed in Dorm G-1 for medical reasons because of certain
features in that dorm, such as rails in the shower and bathroom. Claimant
asserts that he filed a grievance protesting his proposed move, that the
grievance committee concluded that Claimant's account was correct and, thus,
that he could be moved from Dorm G-1 only at the direction of a doctor.
A month later, on September 16, 2003, Claimant again was informed that he would
be moved from Dorm G-1, this time to the annex part of the facility, Dorm M-2.
He maintains that again he protested, but that a sergeant who had been present
at the first grievance hearing stated that Claimant's medical records did not
indicate that he had to be housed in the main part of the facility. Claimant
asserts that when he went to sick call, the nurse reviewed his chart and said
that he had to be housed in the main facility. During the time Claimant was
housed at Dorm M-2, he alleges that he was unable to obtain his special diet for
hypertension. On September 26, 2003, he was moved back to a dorm in the main
facility. Claimant says that the officer in charge at Dorm M-2 required
Claimant to carry his own, very heavy, bags, although he protested that he was
restricted from heavy lifting by the doctor. While attempting to carry a duffel
bag weighing approximately 100 pounds, Claimant fell and struck his head.
The claim sets out four causes of action: for physical injuries caused by
Claimant’s inability to obtain his special diet for a period of time; for
injuries suffered when he was forced to carry a heavy bag and, as a result, fell
and hit his head; for inadequate medical treatment received following the blow
to his head; and for "illegally" moving Claimant from the main facility to the
annex on September 16, 2003.
In his affidavit submitted in support of the motion, Claimant asserts that the
Amended Claim would narrow the issues and causes of action that are relevant and
material and would conform to the evidence.
The original Claim consists of ten pages and contains four causes of action.
The Amended Claim is five pages in length, consists of 13 numbered paragraphs
and asserts two causes of action.
CPLR 3025(b) provides that leave to amend shall be freely given upon such terms
as are just. The phrase has been interpreted to mean that, in the absence of
prejudice or unfair advantage, leave to amend should be given freely
(McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp.,
59 NY2d 755 ; Nasuf Constr. Corp. v State of New York, 185 AD2d 305
[2nd Dept 1992]). “Mere lateness is not a barrier to the amendment. It
must be lateness coupled with significant prejudice to the other side, the very
elements of the laches doctrine” (Edenwald Contr. Co. v City of New
York, 60 NY2d 957, 959 , quoting Siegel, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 7B, CPLR 302:5; Arcuri v Ramos, 7
AD3d 741, 741-742 [2d Dept 2004]).
In his affirmation in opposition to the motion, the Assistant Attorney General
asserts that Defendant would be unduly prejudiced by this eve-of-trial
This motion was returnable on November 7, 2007 and the trial of this matter was
scheduled for November 14, 2007. The trial was adjourned, without date, when
the Department of Correctional Services failed, through no fault of Claimant, to
transport Claimant for trial. As the trial has been adjourned, the Court
concludes that the State will not be prejudiced by allowing Claimant to serve
and file an amended claim.
Therefore, Claimant’s motion to serve and file an amended claim is
granted and Claimant is directed to serve and file his Amended Claim, in the
form attached to his motion, within thirty (30) days of the date of filing of
this Decision and Order, as provided in § 206.7(b) of the Uniform Rules for
the Court of Claims. Defendant’s answer to the Amended Claim shall be
served and filed within forty (40) days after service of the Amended