New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2009-015-166, Claim No. 111167-A, Motion No. M-76484


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:
Mark Mitchell, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 15, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves to amend his claim to add a bailment cause of action. The original claim alleged causes of action for: (1) retaliatory transfer from the protective custody unit at Clinton Correctional Facility to Great Meadow Correctional Facility on April 11, 2005; (2) wrongful confinement, and (3) deliberate indifference to the claimant's mental health needs. By Decision and Order of this Court dated October 1, 2007, defendant's motion to dismiss the claim for failure to meet the pleading requirements set forth in Court of Claims Act § 11 (b) was granted to the extent of dismissing the claimant's causes of action for wrongful confinement and deliberate indifference to the claimant's mental health needs. Thus, the only cause of action remaining is one for retaliatory transfer.

Claimant now seeks to add a cause of action sounding in bailment. In an unsworn "affidavit" claimant states that certain of his personal property was removed from his cell while he was in the hospital for a colon examination but not returned. He filed an administrative claim, which was denied, and his appeal of the denial was disapproved on January 16, 2009.[1]

The law is well settled that leave to amend a pleading is inappropriate where it would result in prejudice or surprise to the opposing party (see CPLR 3025[b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 [1983]; Garrison v Clark Mun. Equip., 239 AD2d 742, 742 [1997]; Pritzakis v Sbarra, 201 AD2d 797, 799 [1994]).[2]

Here, the claimant seeks to amend the claim to a add cause of action unrelated to the original claim, which is scheduled for trial on April 30, 2009. Under these circumstances the Court finds that amendment of the existing claim would be inappropriate. Additionally, claimant failed to submit a proposed amended claim.

Accordingly, claimant's motion is denied.

April 15, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 2, 2009;
  2. Unsworn "affidavit" of Mark Mitchell dated April 2, 2009 with exhibits;
  3. Letter dated April 10, 2009 from Stephen J. Maher.

[1]. Pursuant to Court of Claims Act § 10 (9) a claim for lost or damaged property may be filed and served within 120 days after the date on which the inmate has exhausted his administrative remedy.
[2]. Section 206.7(b) of the Uniform Rules for the Court of Claims ( 22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR 3025, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it."