New York State Court of Claims

New York State Court of Claims

BLACKWELL v. STATE OF NEW YORK, #2009-032-133, Claim No. 101994, Motion No. M-76148


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:
James Blackwell, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, James Blackwell (hereinafter, “claimant”) brings a motion before the court seeking the following relief: 1) the removal and exclusion of Marjorie S. Vogel as a co-claimant/litigant in claim number 101994; 2) leave to amend claim number 101994 by adding a cause of action for negligence/malpractice; and 3) leave to amend claim number 101994 by adding a cause of action for loss of property.

The underlying claim, which was filed on February 22, 2000, arose while claimant was an inmate incarcerated at Wyoming Correctional Facility and Bare Hill Correctional Facility. The claim initially alleged two causes of action: unjust confinement arising out of claimant’s placement in administrative segregation and subsequent transfer to another correctional facility (the first cause of action); and medical malpractice arising from surgery to claimant’s left wrist (the second cause of action). After defendant moved for summary judgment seeking dismissal of the claim, the Court dismissed the first cause of action (Blackwell v State of New York, Motion No. M-61527, July 31, 2000, NeMoyer, J.) and proceeded on only the medical malpractice cause of action.

The note of issue and certificate of readiness was filed on September 18, 2006. Shortly thereafter, claimant was sentenced to a term of incarceration. Accordingly, the Court adjourned the trial which had been scheduled for June 5, 2007 (Blackwell v State of New York, Motion No. M-72957, April 4, 2007, Ferreira, J.).
Removal and Exclusion of Marjorie S. Vogel as a Co-Claimant/Litigant
Claimant seeks to have Marjorie S. Vogel removed as a co-claimant in this claim, based on her apparent lack of interest in litigating and prosecuting the claim. However, the only cause of action which remains in this claim is Mr. Blackwell’s cause of action for medical malpractice (Blackwell v State of New York, Motion No. 61527, July 31, 2000, NeMoyer, J.). Accordingly, although Ms. Vogel is a named claimant in Claim No. 101994, because there is no alleged cause of action under which she can be granted relief, the claim is dismissed as it relates to her.
Leave to Amend Claim
Claimant seeks leave to amend his claim to add causes of action for negligence, medical malpractice and loss of property. In support of his application, he alleges that the Department of Correctional Services was negligent in securing claimant’s personal property on April 1, 2008, that the Division of Health Services failed to provide claimant with prescribed medical treatment for Hepatitis C and for re-injury to his left wrist, while in the care, custody and control of defendant, between November 2007 and October 29, 2008.

Defendant opposes the motion on the basis that the requested amendments are unrelated to the current claim.

Pursuant to CPLR Rule 3025 (b) and § 206.7(b) of the Uniform Rules for the Court of Claims, a party may amend a pleading at any time with Court approval, which shall be freely given. While leave to amend a pleading should be freely given, however, the decision regarding whether to grant such leave is left to the sound discretion of the trial court (see Murray v City of New York, 43 NY2d 400, 404-405 [1977], rearg dismissed, 45 NY2d 966 [1978]; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]). If leave to amend would cause the opponent to suffer prejudice or surprise resulting directly from the delay in seeking leave, or if the proposed amendment is palpably insufficient or devoid of merit, then leave should be denied (Shefa Unlimited, Inc. v Amsterdam & Lewinter, 49 AD3d 521 [2d Dept 2008]). A claimant must make some evidentiary showing in support of his amended claim (Mathiesen v Mead, 168 AD2d 736, 737 [3d Dept 1990]).

In the present case, claimant has not offered anything other than his own conclusory allegations to show that the additional causes of action have merit or that they are a “mere expansion” of the allegations in the original claim and thus, “relate back” to that pleading (see Krioutchkova v Gaad Realty Corp., 28 AD3d 427 [2d Dept 2006]; Matter of New York Foundling Hosp., Inc. v Novello, 47 AD3d 1004 [3d Dept 2008]). To the contrary, the additional causes of action pertain to events that occurred at least seven years after the filing of claimant’s claim, and are not at all related to said initial claim. Moreover, where, as here, an action has been certified as ready for trial, judicial discretion in permitting the amendment should be exercised only in the most “discreet, circumspect, prudent and cautious” of circumstances (see Yavorski v Dewell, 288 AD2d 545 [3d Dept 2001], quoting Thompson v Connor, 178 AD2d 752, 753 [3d Dept 1991], lv denied 80 NY 2d 826 [1992]).

Based on the foregoing, claimant’s motion seeking to amend his claim is denied.

July 2, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Affidavit in Support of James Blackwell, sworn to January 9, 2009;

2. Affirmation in Opposition to Leave to Amend of Paul F. Cagino, AAG, dated March 9, 2009;

3. Reply Affidavit of James Blackwell, sworn to March 18, 2009.