Claimant's motion to amend claim to add allegations of actual notice against the defendant in an inmate-on-inmate assault case was granted.
|Claimant(s):||BENJI D. REED|
|Claimant short name:||REED|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Benji D. Reed, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 10, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, seeks leave to amend his claim.
Claimant seeks damages for injuries sustained in an inmate-on-inmate assault which allegedly occurred in the recreation yard of Great Meadow Correctional Facility on July 29, 2006. By way of background, claimant sets forth in the original claim that he was assaulted by an inmate on July 29, 2006 and was thereafter confined to his cell until September 27, 2006 (claim, ¶ 5). Claimant alleges in the claim that he was again ordered confined to his cell on October 19, 2006 pending transfer to another correctional facility (claim, ¶ 6). Claimant was directed to pack his belongings, which he did, and after requesting permission to use a cart, the following exchange with Correction Officer White is alleged to have occurred:
"9. Officer White insolently said to the Claimant, 'You're a tough guy, carry your own bags down there - you fake ass gangster!' The claimant then kindly said to officer White 'please do not play with me like that.' Officer White replied, 'I'm not playing with you asshole, and if you get smart with me again, you will not make it out of here alive! The Claimant replied 'whatever[.] Officer White then said, 'You will see!' "
That afternoon claimant alleges that he was advised that he was removed from "draft status" (claim, ¶ 11). He was directed to retrieve his belongings and identification card from the officer stationed in front of the auditorium but when he attempted to do so he was informed by another correction officer that he had to retrieve his property the following morning. When claimant attempted to return to his cell he was told that he could not return to his housing block because the inmates housed there were being released for recreation and no escort officer was available. Claimant was directed to go to the recreation yard to await "early go in." While in the recreation yard the claimant was attacked "by two (2) unknown inmates."
While claimant alleged in his original claim that the defendant had constructive notice the claimant could be harmed and that the risk of harm existed "for about eight hours" preceding the incident (claim, ¶¶ 18, 19), he did not allege specifically that the defendant had actual notice of the danger. Claimant now seeks to amend the claim to allege that "[o]n October 19, 2006 the Defendant had actual and constructive notice that the Claimant could be harmed" (proposed amended claim, ¶ 21).
It is well settled that leave to amend a pleading " 'shall be freely given' absent prejudice or surprise resulting directly from the delay" (McCaskey , Davies and Assoc. v New York City Health and Hospitals Corp., 59 NY2d 755, 757 , quoting CPLR 3025[b][other citation omitted]; see also 22 NYCRR § 206.7[b]) ). To defeat a motion to amend, the opponent of the motion must show that it would be "significantly prejudiced" by the amendment (Garrison v Wm. H. Clark Mun. Equipment, 239 AD2d 742 ). "Prejudice in this context means that the party opposing the amendment has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Garrison v Wm. H. Clark Mun. Equipment, supra, 239 AD2d 742-743, quoting Pritzakis v Sbarra, 201 AD2d 797, 799 ; see also Chiapperini v Grossinger's Hotel, 176 AD2d 1048, 1049; Smith v Industrial Leasing Corp., 124 AD2d 413, 414 [ultimate test is whether the opponent of the motion to amend has suffered undue prejudice]).
In opposition to the motion, defense counsel points out the confusion arising from claimant's reference in his notice of motion for leave to "specify facts alleged in the Judicial notice" and that to the extent claimant seeks to add additional facts it is "moot because they amount to nothing more than a further particularization of allegations already made" (affirmation in opposition, ¶ 3). Inasmuch as the claimant's motion papers as a whole make clear that the claimant's motion was a request for leave to amend the claim to add an allegation of actual notice, and the defendant has not alleged any prejudice as the result thereof, the Court will grant the claimant's motion for leave to amend the claim.
Accordingly, claimant's motion is granted to the extent he seeks leave to file and serve the proposed amended claim. Claimant is directed to file and serve the amended claim in the form proposed within 45 days of the date of filing of this Decision and Order.
March 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: