New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-032-136, Claim No. 110281, Motion No. M-76415


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:
Johnathan Johnson, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in the custody of the Department of Correctional Services, moves this Court for leave to supplement and amend his claim, which alleges in pertinent part, that he was given a restricted dietary loaf to which he had told defendant he was allergic. In his original claim, Claimant alleges that he is allergic to the potatoes contained in the dietary loaf; in his proposed amended claim, he alleges that he is allergic to the milk and wheat contained in the dietary loaf, rather than the potatoes. Defendant opposes the motion on the basis that Claimant failed to include a copy of the proposed amended claim; that the proposed amended claim would be prejudicial to Defendant, given that all discovery, research and preparation conducted to date have focused on Claimant’s allegation that he was allergic to potatoes, and that a trial has already been scheduled; and that Claimant’s proposed amendment is insufficient as a matter of law. Defendant requests that, in the event Claimant’s motion is granted, the trial of the claim be adjourned to afford Defendant an opportunity to investigate the proposed amended or supplemental 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, 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]). Where 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, 546 [3d Dept 2001], quoting Thompson v Connor, 178 AD2d 752, 753 [3d Dept 1991], lv denied 80 NY2d 826 [1992]).

In the present case, the only amendment Claimant seeks to make to his original claim is to change the allegation of foods to which he is allergic, in an apparent effort to conform the pleadings to the actual facts. Defendant alleges that it did not receive a copy of the proposed amended or supplemental claim. However, the motion filed with the Court is supported by a document entitled “Supplemental Complaint and Amended Claim” and that document sets forth the same proposed changes as discussed in Claimant’s affidavit.

Based upon the foregoing, and the fact that the amended cause of action has merit and/or is an expansion of the allegations in the original claim and thus “relates 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]), the Court grants Claimant’s motion seeking to amend his claim. Claimant is directed to file and serve an amended claim in which Claimant’s allegation of being allergic to “potatoes” in the original claim is substituted with “milk and wheat” within thirty (30) days of the date of the filing of this decision and order. As provided in 22 NYCRR § 206.7 (b), Defendant’s answer to the amended claim shall be served and filed within forty (40) days after service of the amended claim. The Court adjourns the trial previously scheduled to allow Defendant an opportunity to investigate the allegations raised in the amended claim.

August 21, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Claimant’s Notice of Motion dated March 13, 2009 with Affidavit sworn to on March 17,

2009, and “Supplemental Complaint and Amended Claim”;

2. Affirmation of Roberto Barbosa, AAG in Opposition to Claimant’s motion dated April 29,

2009 with annexed Exhibits.