New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-564, Claim No. 115333, Motion No. M-76737


Synopsis


Claimant’s motion to supplement claim granted. Defendant did not oppose request, and leave to amend should be freely given (CPLR 3025).

Case Information

UID:
2009-038-564
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):
115333
Motion number(s):
M-76737
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 Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 17, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual incarcerated in a State correctional facility, seeks to recover damages for personal injuries allegedly sustained as a result of defendant’s refusal to permit claimant to attend the funeral of his mother, and also as a result of alleged verbal harassment of claimant by a correction officer. The claim asserts that defendant is liable to him due to malicious acts, violation of its own rules and regulations, and negligent hiring, training and supervision of agents, servants and employees. Claimant moves pursuant to CPLR 3025 to supplement his claim to add additional factual allegations to the claim; the proposed supplement to the claim does not contain any additional causes of action or theories of liability. In an affirmation of counsel, defendant does not oppose claimant’s motion because the claim sounds in negligence, the statute of limitations for claims sounding in negligence has not yet expired, and the interests of judicial economy would be served by permitting an amended claim. CPLR 3025 (b) provides that “[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties.” That provision further states that such “[l]eave shall be freely given” (id.).

As noted above, the proposed supplement to the claim adds factual allegations relating to the circumstances underlying the causes of action set forth in the claim. Specifically, claimant seeks to add allegations that he was deprived the opportunity to speak with his daughter, and that certain correction officers were acting in conspiracy with each other and in a retaliatory manner toward claimant. In light of defendant’s express lack of opposition to claimant’s motion, and because leave to supplement a pleading should be freely given, claimant’s motion will be granted. Accordingly, it is

ORDERED, that Motion No. M-76737 is GRANTED, and claimant shall, within thirty (30) days of the date of filing of this Decision and Order, serve and file an amended claim that incorporates the proposed supplemental allegations. Service upon the Attorney General shall be by certified mail, return receipt requested.


September 17, 2009
Albany, New York

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


Papers considered
:


(1) Claim No. 115333, filed June 4, 2008;

(2) Notice of Motion, dated May ___, 2009;

(3) Affidavit of Johnathan Johnson, 89A1042 In Support of Motion, sworn to May 15, 2009;

with attachment;

(4) Affirmation of Michael C. Rizzo, AAG, dated June 24, 2009, with exhibits A-C.