Claimant, a pro se
inmate incarcerated at Upstate Correctional Facility,
filed this claim on August 29, 2007 seeking damages allegedly sustained when a
facility nurse refused to give claimant his prescription sinus medication on
August 14, 2007. Claimant moves pursuant to “CPLR
to supplement his claim to add
allegations that he was denied his prescription sinus medication again on
October 10, 2007, and was harassed by an “escort” prison guard on
October 9 and 10, 2007 in retaliation for his filing of the instant claim.
Defendant opposes the motion. “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” (CPLR 3025 [b]). Leave to
amend or supplement pleadings “shall be freely given” (id.
unless the proposed amendments plainly lack merit or would cause the nonmoving
party to suffer prejudice or unfair surprise (see Bastian v State of
, 8 AD3d 764, 765 [3d Dept 2004]; Thomas Crimmins Contr. Co. v
City of New York
, 74 NY2d 166 ; Fahey v County of Ontario
NY2d 934 ). Courts are vested with broad discretion to grant or deny
leave to amend or supplement a pleading, but it would be an improvident exercise
of discretion to deny leave unless the non-moving party demonstrates inordinate
delay and significant prejudice (see Bastian v State of New York
; Edenwald Contr. Co. v City of New York
, 60 NY2d 957
), or a plain lack of merit in the proposed amended or supplemental
pleading (cf. Acker v Garson
, 306 AD2d 609, 610 [3d Dept
Defendant argues that claimant’s motion should be denied because the
additional allegations that he seeks to add to his original claim “are not
part of the original claim” and that he is “seeking to assert a new
claim via this motion” (Cagino Affirmation, Oct. 31, 2007, ¶10).
While these contentions may be considered in relation to delay or prejudice, the
argument does not mandate denial of claimant’s motion in the absence of
authority that leave is improperly granted solely because the motion pursuant to
CPLR 3025 seeks to add a new cause of action based upon subsequent events.
Indeed, joinder of unrelated claims against the same defendant is generally
permitted (see CPLR 601).
Defendant does not argue that there was an inordinate delay in making the
motion, that the granting of leave would result in significant prejudice or
unfair surprise to defendant, or that the proposed supplement plainly lacks
merit, and none of these considerations appear on the face of claimant’s
motion. Although the allegations in the proposed supplemental claim occurred
after the claim was filed, they are similar in nature to the allegations in the
original claim, and it appears that the separate occurrences would give rise to
overlapping discovery and will involve some of the same witnesses. The motion
including the supplemental allegations was made within the jurisdictional time
requirement of the Court of Claims Act (see Court of Claims Act § 10
[3-b]) and the applicable statute of limitations (see CPLR 214 ), and
denial of this motion could engender an additional motion pursuant to Court of
Claims Act § 10 (6). Thus, in light of the related nature of the claims
and the potential for additional motion practice, efficiency and principles of
judicial economy are served by granting the instant motion.
CPLR 3025 (b) directs that leave to amend or supplement the claim be freely
given. In the absence of demonstrated delay, prejudice or plain lack of merit,
and because it is permissible to join even unrelated claims in a single action
and because to do so here would have certain beneficial effects,
claimant’s motion will be granted.
Accordingly, it is
ORDERED, that Motion No. M-74093 is GRANTED, and it is further
ORDERED, that claimant is directed to serve and file the supplemental claim in
the form attached to Motion No. M-74093, within thirty (30) days of the date of
filing of this decision and order. As provided in 22 NYCRR § 206.7 (b),
defendant’s answer to the supplemental claim shall be served and filed
within forty (40) days after service of the supplemental claim.
(1) Claim No. 113157, filed August 29, 2007;
(2) Verified Answer, filed September 20, 2007;
(3) Notice of Motion, dated October 10, 2007;
(4) “Affirmation in Support of Motion to Supplement Claim,” dated
October 10, 2007,
(5)Affirmation in Opposition of Paul F. Cagino, AAG, with exhibits A-B.