The following papers were read and considered by the Court on these motions:
Claimant’s Motion to Amend Claim, Claimant’s Affidavit in Support
with annexed documents, Defendant’s Notice of Cross-Motion,
Defendant’s Affirmation in Opposition to Claimant’s Motion and in
Support of Defendant’s Cross-Motion, Claimant’s Affidavit in Reply
with annexed document, Claimant’s Memorandum of Law, the filed Claim and
the filed Answer.
Claimant, Anthony D. Amaker, a pro se inmate, has brought this motion
seeking leave to amend his claim. On May 31, 2007, claimant filed his original
claim alleging that his personal property was improperly destroyed by defendant,
the State of New York, through its agents. Claimant stated that defendant took
possession of his personal property during the time he was placed in the Special
Housing Unit (SHU) from September 29, 2006 through December 30, 2006 at the
Southport Correctional Facility. After claimant was provided with his personal
property he discovered that his typewriter was damaged. Claimant then filed his
claim seeking damages for either the total cost of the typewriter or for the
cost of the repairs to the typewriter.
Claimant is presently seeking to amend his claim in order to assert a new claim
which accrued on April 2, 2007 at the Wende Correctional Facility. On that
date, claimant contends that the facility received a mailed package addressed to
him but that the package was never turned over to him by the employees of the
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 or by stipulation of the parties.
Leave shall be freely given upon such terms as may be just including the
granting of costs and continuances.” Courts are vested with broad
discretion in determining whether to grant or deny leave to amend,
“provided there is no prejudice to the nonmoving party and the amendment
is not plainly lacking in merit” (Matter of Miller v Goord, 1 AD3d
647, 648 [3d Dept 2003]).
Defendant argues, inter alia, that the motion should be denied because
it is prejudiced by the amended claim which seeks to add completely unrelated
allegations that occurred at a different facility months after those contained
in the original claim.
It is clear that the requested amendment sets forth a new claim entirely
unrelated to the claim asserted in the original claim. The original claim,
which accrued in December 2006 at the Southport Correctional Facility, concerns
allegations of damage to claimant’s typewriter. The allegations in the
amended claim accrued in April 2007 at a different facility and essentially
concern the loss of claimant’s mail.
It is a proper exercise of discretion to deny leave to amend a claim where the
proposed cause of action would “impermissibly expand the scope of the
original proceeding” (Matter of Miller, supra, at 648; see also
Thibeault v Palma, 266 AD2d 616 [3d Dept 1999]; Green v Irwin, 174
AD2d 879 [3d Dept 1991]). In the instant case, the amended claim contains
allegations which are not an expansion of those contained within the original
claim but instead are entirely distinct claims which are based on an entirely
separate set of facts. The claims will not have overlapping discovery and will
not involve any of the same witnesses.
Thus, the Court finds that the amended claim would impermissibly expand the
scope of the proceeding.
In addition, the Court of Claims Act sets forth specific requirements which
must be strictly adhered to before this Court acquires jurisdiction over a new
claim (CCA §§ 10, 11). The Court of Appeals has long held that
“[b]ecause suits against the State are allowed only by the State’s
waiver of sovereign immunity and in derogation of the common law, statutory
requirements conditioning suit must be strictly construed” (Dreger v
New York State Thruway Authority, 81 NY2d 721, 724 ). Accordingly, it
is not permissible for claimant to amend his claim to assert entirely new
unrelated claims since, in effect, those new claims would have circumvented the
requirements and purpose of the Court of Claims Act.
Defendant argues that since claimant did not appeal the initial review and
approval of his claim, he did not exhaust his administrative remedies prior to
bringing his legal action as required by the Court of Claims Act §10(9).
However, defendant failed to raise this assertion in its answer as an
affirmative defense to the claim as required by CCA §11(c). Moreover,
defendant admitted in its answer that the claim was timely filed (see Def.
Answer line 1). Consequently, the defense has been waived by defendant.
Therefore, based upon the foregoing reasons, claimant’s motion for leave
to amend his claim is denied. Additionally, defendant’s cross-motion to
dismiss the claim is denied.