New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-038-579, Claim No. 114157, Motion No. M-74093


Claimant’s motion to supplement claim to add a new cause of action alleging a later tortuous incident granted. Defendant showed no delay, prejudice or plain lack of merit.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 3025(e)”[1] 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 New York, 8 AD3d 764, 765 [3d Dept 2004]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166 [1989]; Fahey v County of Ontario, 44 NY2d 934 [1978]). 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, supra; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]), or a plain lack of merit in the proposed amended or supplemental pleading (cf. Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]).

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 [5]), 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.

January 7, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(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,

with exhibit;

(5)Affirmation in Opposition of Paul F. Cagino, AAG, with exhibits A-B.

[1]. Although CPLR 3025 does not contain a subdivision (e), the Court has construed claimant’s notice of motion as a motion for leave to file a supplemental pleading under CPLR 3025 (b).