Claimant's motion to supplement his claim was denied where new facts in proposed supplement were unrelated to original claim.
|Claimant(s):||BARTRAM YIHNI DABNEY|
|Claimant short name:||DABNEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77339, M-77338|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Bartram Yihni Dabney, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 10, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for permission to supplement his claim (Motion No. M- 77338) and for the issuance of a temporary restraining order (Motion No. M-77339).
The claim and a document denominated "Amendment As of Course Sec § 236 of C.P.L.R." were filed in the Office of the Chief Clerk on June 4, 2009 and assigned claim number 116956. The claim alleges that on November 13, 2008 the claimant filed a grievance regarding Correction Officer M. Stormer involving "numerous of issues of harassment & religion & race discrimination". He alleges that in retaliation for the grievance filed against him, Correction Officer Stormer made degrading remarks regarding his Muslim religion and placed him in a cell with urine and feces on the floor and walls and refused to provide the necessary supplies to clean the cell. The claim further alleges the claimant was deprived of commissary privileges, his television cable and music were disconnected and that Correction Officer Stormer conspired with others in issuing false misbehavior reports and depriving claimant of his right to attend the hearing with respect to one of the reports. According to the misbehavior reports attached to the claim, claimant was charged with certain rule violations on April 2, 2009 and November 26, 2008 and his administrative appeals in both instances resulted in an affirmance of the Hearing Officer's findings. As the result of the conduct complained of, claimant alleges he lost his good time allowance, was unable to attend his programs and was denied release to parole supervision.
The document denominated "Amendment As of Course Sec § 236 of C.P.L.R." alleges discriminatory conduct on May 29, 2009 and additional instances of discriminatory conduct and theft of property on unspecified dates.
A second document denominated "Amendment of Course CPLR§ Sec 236 & Supplemental 3025" was thereafter filed on September 28, 2009. In the purported amendment, claimant repeats the allegations made in the prior amendment filed with the claim. Defendant served its answer to the claim on October 23, 2009 denying the "claim or claims" in their entirety.
A further "Supplemental" claim was filed on December 16, 2009 relating to an allegedly false misbehavior report written on November 8, 2009, the conduct of the hearing in relation thereto, and the conditions of claimant's confinement to the special housing unit ("SHU"). On January 22, 2010 claimant filed another supplemental claim relating to his confinement in the SHU following the issuance of the misbehavior report on November 8, 2009.
Claimant now moves (Motion No. M-77338) to supplement his claim to add the allegation that he was again the victim of discrimination when a false report of misconduct was issued on August 11, 2009, which resulted in the denial of necessary medical treatment and a delay in his release from prison. He also moves (Motion No. M-77339) for an order restraining the defendant from engaging in further retaliatory conduct. Both motions are denied.
In response to the Clerk's notification of the calendaring of the instant motions, defense counsel notified the Chief Clerk of the Court that it was not served with the motions. However, the affidavit of service attached to the claimant's motion to supplement the claim indicates that it was served on September 24, 2009. Although the affidavit of service attached to the motion for a restraining order indicates that it was served, the date of service is not set forth in the affidavit. Putting aside the insufficiency of the affidavit of service relative to the motion for a restraining order, both motions are denied.
The law is well settled that leave to amend a pleading is inappropriate where it would result in prejudice or surprise to the opposing party (see CPLR 3025[b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 ; Garrison v Clark Mun. Equip., 239 AD2d 742, 742 ; Pritzakis v Sbarra, 201 AD2d 797, 799 ). Here, the proposed amendment impermissibly expands the scope of the original claim as it appears entirely unrelated to the events set forth in the papers originally filed as a claim (see Matter of Miller v Goord, 1 AD3d 647 ; Green v Irwin, 174 AD2d 879 ). The proposed amendment involves different correction officers, different proof, and would add confusion to an already prolix set of allegations. Moreover, a proposed amended claim was not submitted with the motion.
With respect to claimant's motion for a restraining order, the law is clear that "[a]s a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 , lv denied 4 NY3d 704 , citing Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671  and Psaty v Duryea, 306 NY 413 ). While equitable relief is available where it is incidental to a claim seeking a money judgment (Psaty v Duryea, supra), a temporary restraining order is inappropriate under the circumstances of this case (see CPLR 6301).
Based on the foregoing, claimant's motions numbered M-77339 and M-77338 are denied.
February 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-77338
Motion No. M-77339