New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-573, Claim No. 115787, Motion No. M-76982


Synopsis


Claimant’s motion to supplement/amend claim granted

Case Information

UID:
2009-038-573
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-76982
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 T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 9, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for various injuries he allegedly suffered as a result of defendant’s failure to allow him to attend a disciplinary hearing, and the subsequent disciplinary imposition of a restricted diet. Claimant previously moved to supplement and amend his claim, which motion was denied without prejudice by this Court on the ground that the proposed supplemental or amended claim was not served upon the Attorney General (see Johnson v State of New York, UID #2009-038-554, Claim No. 115787, Motion No. M-76479, DeBow, J. [July 2, 2009]). Claimant now moves for a “rehearing” on the motion. The motion papers submitted to the Court do not include the proposed supplemental or amended claim that was previously submitted, but it appears that said document has been served upon the Attorney General. In response, defendant takes no position on the motion. Claimant’s proposed supplemental claim, which was previously submitted to the Court as part of Motion No. M-76479, seeks to alter certain allegations in the second cause of action, which relates to the restricted diet that was imposed on claimant. Leave to supplement pleadings “shall be freely given” (CPLR 3025[b]). As noted above, defendant does not oppose the motion, and the Court discerns no prejudice that would flow to defendant if the motion were granted. Accordingly, it is

ORDERED, that Motion No. M-76982 is GRANTED, and it is further

ORDERED, that claimant shall file and serve an “Amended Claim” (one document) that includes the first cause of action as set forth in Claim # 115787, filed September 5, 2008 and the second cause of action as set forth in the “Supplemental and Amended Claim” that was submitted to the Court in support of Motion No. M-76479, and it is further

ORDERED, that said Amended Claim shall be filed and served within thirty (30) days of the date of the filing of this Decision and Order, and that said filing and service shall be accomplished in accordance with the requirements of Court of Claims Act § 11(a)(i).


November 9, 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;

(5) Decision and Order (Johnson v State of New York, UID #2009-038-554, Claim No. 115787,

Motion No. M-76479, DeBow, J. [July 2, 2009]);

(6) Notice of Motion, dated July 14, 2009;

(7) Affidavit of Johnathan Johnson in Support of Motion for Rehearing, sworn to July 14, 2009;

(8) Affidavit of Service, sworn to July 14, 2009;

(9) Response of Michael T. Krenrich, AAG to Motion for Rehearing for Leave to Amend and

Supplement Claim, dated August 11, 2009.