Pro se inmate's motion to amend claim was granted in part.
|Claimant short name:||LOWMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Lamont Lowman, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 22, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves to amend his claim to add the allegation that he suffered mental and physical pain as the result of the defendant's failure to provide him with three meals per day for two days. He also seeks to allege a cause of action for a violation of his Eighth Amendment rights under the US Constitution.
Claimant alleged in his original claim that he was not provided with the required three meals per day on October 24, 2009 and October 25, 2009, but did not expressly allege that he suffered either mental or physical pain as a result.
Section 206.7 (b) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR 3025, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it." 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 . . ."
It is well settled that leave to amend a pleading "is freely granted (see CPLR 3025 [b]) so
long as 'there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit' " (Paolucci v Mauro, 74 AD3d 1517  [citation omitted]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755, 757 ). Here, the claimant seeks to amend the claim to add the allegation that he suffered mental and physical pain as the result of the defendant's failure to provide him with three meals per day on October 24, 2009 and October 25, 2009. He also seeks to allege a violation of the Eighth Amendment to the US Constitution. Defendant opposes the motion only to the extent it seeks to add the Eighth Amendment claim on the ground that this Court lacks jurisdiction over such claims.
The allegation that the claimant suffered mental and physical pain as the result of the previously alleged failure to provide food will not impermissibly expand the scope of the allegations in the original claim. Nor does defendant object to this branch of the motion. As a result, that branch of the claimant's motion which seeks to add the allegation that he suffered mental and physical pain as the result of the defendant's alleged failure to provide him the required three meals per day on October 24, 2009 and October 25, 2009 is granted. However, to the extent claimant seeks to amend the claim to allege a violation of the Eighth Amendment to the US Constitution, the motion is denied as this Court lacks jurisdiction over such a claim (Will v Michigan Department of State Police, 491 US 58 1989] ; Davis v State of New York, 124 AD2d 420 ; Thomas v State of New York, 10 Misc 3d 1072 [A] [Ct Cl 2005]).
Accordingly, it is hereby
ORDERED, that the claimant's motion to amend his claim is granted to the limited extent permitted herein and is otherwise denied; and it is further
ORDERED, that the claimant is directed to serve his amended claim upon the Attorney General within 45 days of the date on which this Decision and Order is filed, and it is further
ORDERED, that the claimant shall file the original and two copies of the amended claim with the Clerk of the Court of Claims, together with his affidavit of service upon the Attorney General, within 10 days of service of the amended claim.
July 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: