New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2007-040-063, Claim No. 108470, Motion No. M-74070


CPLR 3025 Motion to Amend Claim by Pro Se Prisoner 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:
Joel Murray, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Saul Aronson, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motion to amend his Claim is granted.

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 [1983]; 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 [1983], 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 motion.

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 Claim.

November 30, 2007
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant’s motion to amend his Claim:

Papers Numbered

Notice of Motion, Affidavit in Support
and Amended Claim 1

Affirmation in Opposition 2

Filed Papers: Claim, Answer