New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-044-565, Claim No. 113600, Motion No. M-75024


Claimant’s motion to amend his claim to include additional personal injury which allegedly relates to the existing cause of action is granted. Defendant has set forth no prejudice, and amendment at this early stage in the litigation will not disrupt the orderly prosecution of this claim.

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: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 20, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when he was attacked by a fellow inmate. Claimant asserts that although two correction officers were present at the time of the assault, they failed to promptly intervene and the attack continued for approximately seven minutes. Defendant answered and asserted several affirmative defenses. Claimant now moves to amend the claim.[1] Defendant opposes the motion.

Claimant alleges that in the assault, he “received a very long cut to the back of the left side of his head, and along the left ear, and neck area as well as a deep cut to his left ring finger.” Claimant alleges total damages in the amount of $200,000. Claimant seeks permission to amend the claim to include additional damages of $75,000 for a loss of hearing, allegedly resulting from an injury to his left eardrum which was sustained in the assault.

Defendant contends that claimant’s failure to attach a proposed amended claim is fatal to this motion, and further asserts that the conclusory allegations at this late date are both insufficient to establish additional damage and prejudicial to the State’s defense.[2]

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).

Contrary to defendant’s contention, claimant’s failure to include the proposed amended claim is not fatal to this motion. While it certainly would have been better practice for claimant to do so, the record before the Court is sufficiently complete to address the merits of the proposed amendment (see Walker v Pepsico, Inc., 248 AD2d 1015 [1998]; see also CFJ Assoc. of N.Y. v Hanson Indus., 260 AD2d 917, 919-920 [1999]). Claimant alleges that when he initially filed the claim, he was unaware that the scarring caused by the “cutting injury” behind his left ear would cause eardrum damage, and lead to a loss of hearing. Claimant also alleges that because of this hearing loss, he now has to wear a hearing aid. It is important to note that claimant is not seeking permission to allege an additional cause of action. Rather, claimant is attempting to include additional damages – based upon the cause of action set forth in his original claim – which he allegedly discovered subsequent to both the original filing and service of that claim. Because these additional items of damages are based upon the same allegations which form the basis of the original claim, it is clearly appropriate that they be considered together (Zappala Farms L.L.C. v State of New York, Ct Cl, May 22, 2007, Midey, Jr., J., Claim No. 112297, Motion No. M-73007 [UID # 2007-009-015]). Further, the lack of an expert opinion that the damage to claimant’s eardrum or resulting loss of hearing is causally related to the injuries received in the assault is not fatal in this instance. At this stage in the litigation, the allegation that claimant suffered a hearing loss relating to severe lacerations in the area of his ear is sufficient to establish that there may be merit to claimant’s proposed amendment.[3]

Claimant’s assault occurred on January 3, 2006, and he filed this claim on April 18, 2007. Because claimant served a notice of intention on March 8, 2006, he could have filed this claim as late as January 3, 2008 (Court of Claims Act § 10 [3]).[4] Accordingly, the Court finds that there was clearly no undue delay in making this motion which was filed on May 23, 2008, and apparently served on May 20, 2008.[5]

Defendant’s contention that it will be significantly prejudiced is also 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 [and] review claimant’s medical records just to ascertain whether the alleged injury is linked to the alleged incident,” does not constitute prejudice in the context of this particular claim (emphasis in original). In any event, it will be necessary for defendant to produce and review those medical records in order to formulate its defense to the original claim. For that reason, and because only minimal (if any) 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-75024 is granted. Claimant is authorized to file an amended claim which includes the allegations contained in the original claim as well as assertions concerning claimant’s alleged loss of hearing as additional damages, as set forth above, and to serve a copy of that claim upon the Attorney General, both within 40 days of the filing of this Decision and Order.

August 20, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) “Request Motion to Amend Part into Already Filed Claim” filed on May 23, 2008.

2) “Motion to Amend Part into Already File [sic] Claim” filed on June 13, 2008.

3) Affirmation in Opposition of Roberto Barbosa, AAG, dated June 25, 2008.

Filed papers: Claim filed on April 18, 2007; Verified Answer filed on May 14, 2007.

[1]. Claimant initially filed a document entitled “Request Motion To Amend Part into Already Filed Claim,” in which he seeks permission “to Amend [and] [f]urther states that if granted promission [sic]. He will have [s]aid amended motion [f]iled within 14 working business days.” Claimant apparently believed that a letter from the Clerk of the Court – which scheduled the motion for June 25, 2008 – constituted permission to file a motion to amend, and he thereafter filed a document entitled “Motion To Amend Part into Already File [sic] Claim.” Because permission to file a motion was not necessary, the Court will consider the second submission as an additional affidavit in further support of claimant’s motion.
[2]. Defendant also argues that because claimant failed to serve a copy of the motion on the Attorney General’s Office, the application should be denied. Although claimant has provided affidavits of service for both submissions evincing service on the Attorney General’s Office in Albany, Assistant Attorney General (AAG) Roberto Barbosa affirms that neither he nor defendant in general were served with this motion. Nevertheless, because AAG Barbosa has received a copy of the motion papers and has responded accordingly, the Court will address the merits of the application.
[3]. Claimant will be required to introduce medical evidence at trial to establish causation of the injuries alleged in the original claim, and may address causation of his hearing loss at that time.
[4]. A review of the notice of intention – filed with its affidavit of service as attachments to the claim – reveals that it contains the information required by Court of Claims Act § 11 (b), and based upon the lack of an affirmative defense in defendant’s answer regarding the timeliness of either the filing or service of the claim, was apparently served in a timely manner.
[5]. Although claimant’s affidavit of service indicates that he mailed copies to both defendant and the Clerk of the Court on that date, as set forth previously in this Decision and Order, defendant asserts that it never received this motion from claimant.