New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-554, Claim No. 115787, Motion No. M-76479


Synopsis


Claimant’s motion to supplement/amend claim denied without prejudice. Motion papers served upon Attorney General did not included proposed supplemental/amended claim, and claimant’s affidavit in support of the motion did not address all aspects of the proposed changes

Case Information

UID:
2009-038-554
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115787
Motion number(s):
M-76479
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JOHNATHAN JOHNSON, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, AAG
Third-party defendant’s attorney:

Signature date:
July 2, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an individual incarcerated in a State correctional facility, moves to supplement and amend his claim. Defendant opposes the motion primarily on the ground that it is insufficient as a matter of law because the motion papers do not include the proposed supplemental or amended claim. Although leave to amend or supplement pleadings “shall be freely given” (CPLR 3025[b]), claimant’s motion will be denied. The affirmation and exhibit of the Assistant Attorney General make clear that a proposed supplemental/amended claim was not included in the motion papers that were served upon defendant. The motion filed with the Court is, however, supported by a proposed “Supplemental and Amended Claim.” In this claim alleging injuries flowing from the imposition of dietary sanctions, claimant’s affidavit in support of the motion asserts that he seeks to change the allegation of foods to which he is allergic from “carrots and potatoes” to “milk and wheat” (Johnson Affidavit, ¶ 1), an apparent effort to conform the pleading to the actual facts. This is the only alteration to the original claim that is discussed in claimant’s affidavit. However, the proposed claim that was submitted to the Court in support of the motion includes numerous other changes that are not mentioned in claimant’s affidavit, including changes to the paragraph describing the claimed injuries. If the only proposed change to the claim was the change identified in claimant’s affidavit, the Court might have been inclined to exercise its discretion to grant claimant’s motion to allow this seemingly inconsequential amendment, as defendant had an opportunity to respond to this proposed change. As claimant’s failure to serve the proposed claim deprived defendant of an opportunity to respond to the other proposed changes to the claim, however, the motion must be denied (compare Caldwell v State of New York, UID #2006-032-010, Claim No. 110294, Motion Nos. M-70338, M-70339, Hard, J. [Feb. 23, 2006] [failure to append amended claim not fatal as claimants’ submission reflects intention to add causes of action previously dismissed by the Court]). Accordingly, it is

ORDERED, that Motion No. M-76479 is DENIED, without prejudice.

July 2, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 115787, filed September 5, 2008;

(2) Notice of Motion, dated March 25, 2009;

(3) Affidavit in Support of Motion to Supplement and Amend the Claim of Johnathan Johnson,

sworn to March 25, 2009, with Supplemental and Amended Claim;

(4) Affirmation in Opposition of Michael C. Rizzo, AAG, dated April 22, 2009, with

Exhibits A-C.