New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-044-517, Claim No. 113973, Motion No. M-74008


Inmate’s motion to amend claim to add further lost articles 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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to amend this claim pursuant to CPLR 3025. Defendant opposes the motion.

This claim, originally filed on July 18, 2007, contains a bailment cause of action which seeks damages for eyeglasses allegedly broken during a property transfer from Elmira Correctional Facility (Elmira) to Upstate Correctional Facility (Upstate), and further seeks to recover for penalties imposed upon claimant for disciplinary violations at Upstate which were subsequently reversed. Claimant now seeks to amend the claim to further allege the loss of a pair of sneakers at Upstate on a date (August 1, 2007) subsequent to the filing of this claim.

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” (see also Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend “should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise” (Bastian v State of New York, 8 AD3d 764, 765 [2004]). The determination of whether to grant leave to amend a pleading is left to the sound discretion of the Court (see generally Eddy v White, 304 AD2d 959 [2003]; Ferran v Williams, 281 AD2d 819 [2001], lv dismissed 97 NY2d 653 [2001]). In addressing an application to amend, the Court should consider whether there would be any prejudice to the opposing party; the effect, if any, an amendment would have on the orderly prosecution of the action; whether there was undue delay in seeking the amendment; and whether the proposed amendment is palpably improper or insufficient as a matter of law (see e.g. Nunez v State of New York, Ct Cl, June 26, 2002, Scuccimarra, J., Claim No. 104574, Motion No. M-65275 [UID # 2002-030-525]). Leave should be denied in situations where the proposed amendment lacks merit as a matter of law (see Bastian v State of New York, supra).

Claimant’s unsworn document entitled “Affirmation in Support of Motion to Supplement Claim” in support of the motion contains no factual allegations from which the Court may determine whether there is merit to the proposed cause of action. Defendant has apparently treated this document as a nullity, and argues that because claimant has not submitted an affidavit in support of the motion, his application is procedurally defective under CPLR 2214. The Court will not deny the motion solely on this procedural basis, however, particularly because the information contained in the notice of motion, proposed “Supplemental Claim,”[1] and completed institutional property claim is sufficient for the Court’s review (see e.g. CFJ Assoc. of N.Y. v Hanson Indus., 260 AD2d 917, 919 [1999]).

In the proposed “Supplemental Claim,” claimant alleges that during a “bin exchange” on August 1, 2007, he discovered that his new Fila sneakers were missing from his assigned bin. Claimant states that the institutional claim filed on that date was later approved pending receipt of proof of value. Claimant thereafter filed an appeal arguing that the receipt for the sneakers which would establish their value was put into his package room files at Great Meadow Correctional Facility.[2] The administrative appeal was approved in the amount of $10, with the comment that the “last pkg room receipt [was] '94.” While defendant correctly asserts that claimant has not provided factual support that the sneakers were new, claimant will have the burden of proving their value at trial. The Court finds that the allegations are sufficient to establish that there may be merit to claimant’s proposed bailment cause of action.

The proposed cause of action accrued when claimant’s administrative remedies were exhausted, that is, when claimant received the final determination on his institutional claim (Court of Claims Act §10 [9]). Although there is no evidence regarding the exact date of his receipt of the determination, the administrative appeal was determined on September 17, 2007. There was clearly no undue delay in making this motion which was filed on September 26, 2007, and apparently served on September 24, 2007.[3]

Defendant’s contention that it will be significantly prejudiced is without merit. Prejudice in the context of a motion to amend a pleading is the “loss of a special right, a change in position, or significant trouble or expense that could have been avoided had the original pleading contained the proposed amendment” (New York State Health Facilities Assn. v Axelrod,

229 AD2d 864, 866 [1996]; see also Seaman Corp. v Binghamton Sav. Bank, 243 AD2d 1027, 1028-1029 [1997]). The Court finds that defendant’s alleged inconvenience of having to produce witnesses from two different correctional facilities does not constitute prejudice in the context of this particular claim, because it may already have been necessary for defendant to produce witnesses from both Elmira and Upstate in order to defend the existing two causes of action.

Moreover, the administrative determinations in both the existing and the proposed bailment causes of action and in defendant’s alleged violation of its regulations during the course of claimant’s disciplinary proceeding all occurred at Upstate. For that reason, and because only minimal discovery has taken place, there is no basis to find that the proposed amendment will affect the orderly prosecution of this action.

Claimant’s Motion No. M-74008 is granted. Claimant is authorized to file an amended claim which includes the two causes of action contained in the original claim as well as a third cause of action for the loss of his Fila sneakers, as set forth above, within 30 days of the filing of this Decision and Order.[4]

March 4, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on September 26, 2007; Unsworn “Affirmation” of Johnathan Johnson dated September 24, 2007, and attached exhibit.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated November 30, 2007.

Filed papers: Claim filed on July 18, 2007; Verified Answer filed on August 9, 2007.

[1]. As defendant correctly notes, the proposed “Supplemental Claim” is not properly verified. However, defendant may make any objection to the verification or lack thereof as counsel deems appropriate if an amended claim is filed and served (see infra at 4-5).
[2]. Claimant apparently received the sneakers and their accompanying receipt from his former girlfriend while she was present at that facility for visitation.
[3]. Claimant’s “affirmation” of service indicates that he mailed copies to both defendant and the Clerk of the Court on that date.
[4]. The Court does note that allowing the proposed amendment in essence permits claimant to evade payment of the $50 filing fee for a new claim (see Court of Claims Act § 11-a [1]), without an appropriate review of his financial circumstances. However, the standard that leave to amend should be “freely given” does not take issues such as filing fees into account.