New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-038-613, Claim No. 115061, Motion No. M-75124


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:
No appearance
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed the instant claim on April 2, 2008. The claim alleges that following an incident that occurred on March 1, 2008, a correction officer filed a false misbehavior report against claimant charging him with rules violations that, as alleged in the claim, all constitute violations of the Penal Law. The claim asserts that the facility superintendent refused claimant’s request to preserve videotapes of the alleged incident, and that claimant’s related grievance was denied, and seeks damages for personal injuries sustained as a result of this conduct. Claimant now moves to “supplement” his claim, seeking to add a cause of action alleging that the Franklin County District Attorney and the State Police BCI failed to investigate and prosecute a complaint filed by claimant, in which he alleged that the correction officer who filed the allegedly false misbehavior report committed various felonies in doing so. Defendant has not submitted opposition to 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. . .” Leave to amend a claim should be freely given “unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair suprise” (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]). Whether to grant such relief is a matter committed to the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]). Where a motion seeks to add new causes of action to a pleading, “the movant must demonstrate some evidence of merit as to the new causes of action” (Matter of Miller v Goord, supra).

Here, claimant concededly seeks to add a new cause of action to the original claim. The original cause of action complains of omissions by Department of Correctional Services (DOCS) employees related to an incident that occurred in the facility. The new cause of action that claimant seeks to add complains of omissions by the Franklin County District Attorney and the State Police, arising from their alleged failure to investigate and prosecute a felony complaint allegedly filed by claimant. While the new cause of action is tangentially related to the original cause of action inasmuch as the felony complaint was an apparent sequela to the incident of March 1, 2008, the new cause of action involves agencies other than DOCS, and is based on completely different facts, and would involve different witnesses.

More importantly, claimant has not set forth any evidence that would demonstrate the merit of the new cause of action. To the extent claimant seeks to recover for the alleged negligence of the District Attorney, the Court notes that the Court of Claims lacks jurisdiction for claims alleging torts by the District Attorney, who is not an officer of the State (see Fisher v State of New York, 10 NY2d 60 [1961]; Alexander v State of New York, UID # 2008-009-021, Claim No. 114722, Motion No. M-74570, Midey J. [July 31, 2008]). With respect to the allegation that the State Police failed to investigate and prosecute claimant’s complaint, he has failed to submit evidence demonstrating that he, in fact, submitted a complaint or that it alleged facts that would constitute a violation of the Penal Law. Further, claimant’s submission does not set forth any law demonstrating that the State Police are required to investigate his complaint or that it could be held liable for failing to do so. In sum, because the motion seeks to add a new and distinct cause of action, and because claimant has not demonstrated that there is any merit in that cause of action, the motion to supplement the claim will be denied.

Two additional factors weigh in favor of denying the motion. First, as noted above, defendant has not submitted opposition to the motion. Although claimant’s notice of motion indicates that the motion was served upon an Assistant Attorney General, the motion is not supported by the customary affidavit of service, and thus, the Court is not entirely satisfied that defendant received notice of this motion. Moreover, claimant is not without a remedy with respect to the proposed new cause of action, as he may be within the time frame to submit a motion for permission to file and serve a late claim pursuant to Court of Claims Act § 10(6).

Accordingly, it is

ORDERED, that Motion No. M-75124 is DENIED.

September 30, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115061, filed April 2, 2008;

(2) Verified Answer, filed May 23, 2008;

(3) Notice of Motion, dated May 28, 2008

(4) “Affirmation” in Support of Motion to Supplemental [sic] the Claim” of Johnathan Johnson,

dated May 28, 2008;

(5) Proposed Supplemental Claim, dated May 28, 2008.