New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-516, Claim No. 115061, Motion No. M-75727


Claimant’s motion to “supplement” the claim to add a cause of action granted. New cause of action will require much of the same proof as the original claim, no prejudice or unfair surprise to defendant is apparent, and defendant did not oppose the motion.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: No appearance
Third-party defendant’s attorney:

Signature date:
February 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed the instant claim on April 2, 2008. The claim alleges that following an incident that occurred on March 1, 2008, a correction

officer filed a false misbehavior report against claimant charging him with rules violations. The claim asserts that claimant filed a grievance alleging that the charges in the misbehavior report were false, and that he wrote to the facility superintendent requesting that the videotapes of the alleged incident be preserved. The claim further alleges that his request to preserve the videotapes was denied, as was claimant’s grievance. The claim seeks damages for personal injuries sustained as a result of this conduct. Claimant now moves to supplement his claim, seeking to add a cause of action arising from the hearing on the misbehavior report that was allegedly conducted on March 26, 2008, after which claimant was found guilty of the charges of misbehavior. The proposed supplement alleges that claimant was not given written notice of the disposition of the hearing until August 2008, and that he was thus denied the opportunity to take an administrative appeal from the hearing decision. The proposed supplement to the claim states that this omission by defendant violated Department of Correctional Services Directive 4932 which requires, among other things, that an inmate who is the subject of a disciplinary hearing be given written notice of the disposition of the hearing within 24 hours. Defendant has not submitted opposition to the motion. CPLR 3025(b) provides that “[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences. . .” Leave to amend a claim 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 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]). Whether to grant such relief is a matter committed to the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]).

The alleged failure of DOCS to provide claimant with timely written notice of the hearing disposition is a subsequent occurrence in the continuum of events that began with the incident on March 1, 2008. While the new cause of action may require some proof that is unique and distinct from the events that underlie the original claim, the new proposed cause of action will require proof of the underlying events to establish that claimant was injured by the alleged inability to appeal (i.e., that claimant was innocent of the misbehavior charges). Thus, much of the proof on the new proposed cause of action will be the same as that required on the original claim. The Court does not discern any prejudice or unfair surprise that would be visited upon defendant if claimant’s motion were granted. Further, as noted above, defendant has not submitted opposition to the motion, and the Court notes that the motion is supported by proof that it was served upon the Attorney General (compare Johnson v State of New York UID # 2008-038-613, Claim No. 115061, Motion No. M-75124, DeBow, J. [Sept. 30, 2008]).

Accordingly, it is

ORDERED, that Motion No. M-75727 is GRANTED, and it is further

ORDERED, that claimant shall file and serve upon the Attorney General in accordance with the provisions of the Court of Claims Act an amended claim incorporating Claim No. 115061 and the proposed supplemental cause of action within forty-five (45) days of the filing date of this Decision and Order.

February 9, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115061, filed April 2, 2008;

(2) Verified Answer, filed May 23, 2008;

(3) Notice of Motion, dated October 14, 2008

(4) “Affidavit in Support of Motion to Supplement the Claim” of Johnathan Johnson,

sworn to October 14, 2008;

(5) Proposed Supplemental Claim, sworn to October 14, 2008, with Exhibit A;

(6) Affidavit of Service of Motion, sworn to October 14, 2008.