New York State Court of Claims

New York State Court of Claims

DILLARD v. THE STATE OF NEW YORK, #2007-044-506, Claim No. 111278, Motion No. M-71812


Claimant's motion for permission to file a “supplemental pleading” to correct a date alleged in his bailment claim is granted. However, the portion of the motion pertaining to an amendment of the claim to add additional missing property is denied for failure to exhaust his administrative remedies. Claimant's request to amend the ad damnum clause to include his litigation expenses is also denied.

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 6, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim seeking recovery for personal property allegedly lost or destroyed during his transfer from Elmira Correctional Facility (Elmira) to Gowanda Correctional Facility (Gowanda). Claimant asserts that defendant lost a Remington beard trimmer, a Panasonic walkman, Panasonic headphones and a Lotus Analog/digital watch, all belonging to claimant and in good or perfect condition, totaling $80. Claimant’s institutional claim was approved in the amount of $7, which amount was upheld on appeal. Claimant moves for permission to file a “supplemental pleading” to correct the date of his transfer to December 28, 2004, to include the cost of a broken AC-DC adapter, and to recover the filing fee and photocopying and postage charges. Defendant has no objection to correcting the transfer date, but opposes the remainder of the motion.

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 . . . [which] shall be freely given upon such terms as may be just including the granting of costs and continuances.” In this instance, claimant’s motion actually seeks to amend his claim, rather than to supplement it.[1]

Claimant’s request to correct the transfer date alleged in his claim is unopposed, as previously indicated, and thus is granted. However, claimant’s request to include an AC-DC universal adapter in his claim must be denied. Although this adapter may have been one of the two that were broken or destroyed when the property was transferred, it was not included in claimant’s institutional property claim. As a result, claimant has not exhausted his administrative remedies with respect to such item. While leave to amend a pleading shall be freely given, it will not be permitted if the proposed amendment is plainly lacking in merit (see CPLR 3025 [b]; Bastian v State of New York, 8 AD3d 764, 765 [2004]).

Claimant’s application to amend his ad damnum clause to include the filing fee, photocopy costs and postage is also denied. Should claimant prevail on this claim, he will be entitled to reimbursement of his filing fee pursuant to Court of Claims Act § 11-a (2). With respect to photocopy and postage costs, Court of Claims Act § 27 provides that “costs, witnesses’ fees and disbursements shall not be taxed . . . to any party”. In addition, the State is not required to perform any services related to prison inmate litigation as a general rule, particularly where poor person status has not been granted (see Civil Rights Law § 79 [3] [a]; Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]; Gittens v State of New York, 175 AD2d 530, 530-531 [1991]). Accordingly, claimant is responsible for his own litigation expenses.

Claimant’s motion to amend the claim is granted to the extent that the claim shall accurately reflect December 28, 2004 as the date of his transfer from Elmira to Gowanda. The remainder of the motion seeking to amend the claim to include an AC-DC adapter as additional lost property and to recover for litigation expenses is denied.

February 6, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion to amend the claim:

(1) Notice of Motion for Supplemental Pleading filed on May 26, 2006; unsworn “affidavit” of Lydell C. Dillard dated March 29, 2006, with annexed exhibits.

(2) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated June 27, 2006.

Filed papers: Claim filed on August 22, 2005; Verified Answer filed on September 19, 2005.

[1]. An amendment to a pleading is any change without regard to whether the facts sought to be added existed at the time of the initial pleading, while a supplement adds an allegation that was not initially included because that fact was not in existence at the time of the original pleading (see Siegel, NY Prac § 237, at 396 [4th ed]).