New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-524, Claim No. 115817, Motion No. M-75959


Claimant’s motion to “supplement” claim to add allegations of similar tortious conduct on subsequent dates is granted.

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: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed the instant claim on September 10, 2008. The claim asserts two causes of action. The first alleges that on August 30, 2008, an unidentified nurse at Upstate Correctional Facility “maliciously [and] intentionally” denied claimant’s request for vaseline lotion which, the claim asserts, is necessary to treat claimant’s skin problem. The second cause of action seeks damages because the medical department has allegedly failed to provide claimant with a new pair of eyeglasses following approval thereof on July 16, 2008. Both causes of action assert negligent and intentional conduct on the part of defendant’s employees, and that defendant was negligent in the hiring, training and supervision of employees and in supervising the correctional facility. Claimant moves to “supplement” the claim to add allegations that “Nurse Baker” at Upstate Correctional Facility denied claimant sick calls on October 11, October 12, and November 3, 2008 in response to his requests for vaseline and certain over-the-counter stomach medications. Defendant has not submitted opposition papers 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 to provide claimant with over-the-counter medications on three dates following his filing of the claim are subsequent and similar occurrences to that alleged in claimant’s first cause of action. The motion to supplement the claim by adding these subsequent occurrences was made within the time limitations that would apply to the filing of a new claim. It appears that the supplemental allegations will require proof that is similar in nature to that required on the initial claim, and the “supplemental claim” alleges the same theories of liability as are alleged in the initial claim. Inasmuch as the initial claim was filed fairly recently and any documents and witnesses relevant to the defense of the claim presumably would be within the control of defendant, 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-75959 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. 115817 and the proposed supplemental allegations within forty-five (45) days of the filing date of this Decision and Order.

March 6, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115817, filed September 10, 2008;

(2) Verified Answer, filed November 7, 2008;

(3) Notice of Motion, dated November 28, 2008;

(4) Affidavit of Johnathan Johnson in Support of Motion, sworn to November 28, 2008;

(5) Proposed Supplemental Claim, dated November 28, 2008;

(6) Affidavit of Service of Motion, sworn to November 28, 2008.