New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2008-015-030, Claim No. 111694, Motion No. M-74536


Inmate's motion to amend claim to delete constitutional tort causes of action and add cause of action for violation of nondiscretionary procedures or protocols was 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:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:

Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks leave to amend his claim pursuant to CPLR 3025(b) and (c). The original claim asserts four causes of action arising from the defendant's alleged failure to provide timely and proper medical treatment from September 9, 2002 through November 8, 2005. The claim set forth four causes of action denominated as follows: (1) malpractice; (2) deliberate indifference; (3) cruel and unusual punishment, and (4) retaliation. In the proposed amended claim the claimant deletes the constitutional tort causes of action set forth in the second, third and fourth causes of action and adds causes of action for negligence and ministerial neglect.

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 with respect to the timing of an amendment as of right. 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]). Unless the pleading is plainly lacking in merit, leave to amend a pleading is an appropriate exercise of discretion in the absence of prejudice to the nonmoving party (Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d 987 [2007]; United States Fid. & Guar. Co. v Delmar Dev. Partners, LLC, 22 AD3d 1017 [2005]). Here, the defendant opposes the motion only to the extent it seeks to add causes of action sounding in negligence but has no objection to the withdrawal of the constitutional tort causes of action. Defendant’s sole argument in opposition to the motion is that the negligence causes of action are meritless. In this regard the defendant contends that while it admittedly owes a duty to provide medical care to inmates, the alleged failure to do so may only form the basis for a medical malpractice cause of action. The Court cannot agree.

It has been held that the violation of nondiscretionary protocols in the administration of medical care to prisoners may form the basis for a claim of ministerial neglect (Trottie v State of New York, 39 AD3d 1094 [2007]; Lowe v State of New York, 35 AD3d 1281 [2006]; Kagan v State of New York, 221 AD2d 7 [1996]). At this juncture therefore it cannot be concluded that the proposed causes of action for negligence are patently meritless so as to warrant the denial of the motion.

Accordingly, the claimant's motion for leave to amend is granted and the claimant is directed to file and serve the amended claim in the form proposed within 30 days of the date this decision and order is filed.

Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

1. Notice of motion dated January 31, 2008;

2 Unsworn affidavit of Joel Murray dated January 31, 2008 with exhibit;
  1. Affirmation of Belinda A. Wagner dated February 27, 2008.