Claimant's motion to amend the claim was denied as the proposed assault and battery cause of action is untimely and the proposed cause of action for negligent operation of inmate programming lacked merit.
|Claimant short name:||RUCANO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Anthony Rucano, Pro se|
|Defendant's attorney:||Honorable Eric T. Schneiderman
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 15, 2017|
|See also (multicaptioned case)|
Claimant, proceeding pro se, seeks permission to amend his claim.
In a claim dated June 21, 2016 and received by the Office of the Attorney General on June 29, 2016, claimant sought damages for wrongful confinement alleging he was confined to his cell for 11 days, without being provided a daily one-hour period of recreation, following his arrival at Great Meadow Correctional Facility on June 2, 2016 (defendant's Exhibit A). In an amended claim dated September 27, 2016 and received by the Attorney General on October 5, 2016, claimant added causes of action for sexual harassment and invasion of privacy (defendant's Exhibit B). The sexual harassment claim asserts that on September 6, 2016 claimant was threatened by a correction officer who, upon being informed of the nature of his offense, asked claimant "How would you like to be raped?" (defendant's Exhibit B, p3, ¶18). The amended claim also alleged the claimant was improperly removed from his work assignment at the facility law library in retaliation for his complaints regarding what he considered a sexual threat by the correction officer.
Claimant now seeks permission to amend his claim to allege a cause of action for assault and battery by a correction officer which allegedly occurred at Great Meadow on November 1, 2016 when, claimant asserts, he was threatened and beaten in retaliation for filing a complaint regarding the sexual threat made against him on September 6, 2016.
Claimant also seeks leave to allege a cause of action for negligent operation of inmate programming regarding termination of his assignment in the law library.
It is well settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 ; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [3d Dept 2009]).(1) Leave to amend is properly denied, however, "if the moving party fails to make some evidentiary showing that the proposed amendment has merit" (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [3d Dept 2010] lv dismissed in part and denied in part 17 NY3d 770 ; Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]; Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1289 [3d Dept 2009]). Where prejudice is claimed as a basis for opposing such a motion, the opponent of the motion must show that it would be "significantly prejudiced" by the amendment (Garrison v Clark Mun. Equip., 239 AD2d 742, 742 [3d Dept 1997]). " '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' " (id. at 742-743, quoting Pritzakis v. Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23  rearg denied 55 NY2d 801 ).
To the extent claimant seeks to supplement the claim to assert a cause of action arising from the assault and battery which allegedly occurred on November 1, 2016, the motion is denied. The alleged assault and battery is a separate and distinct cause of action that does not relate back to the occurrence which is the subject of the instant claim (see CPLR 203 [f]). Neither the initial claim nor the amended claim gave defendant "notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (CPLR 203 [f]; see also Shefa Unlimited, Inc. v Amsterdam & Lewinter, 49 AD3d 521 [2d Dept 2008]). As a result, the time to file and serve a claim arising from the November 1, 2016 incident is time-barred (see Court of Claims Act § 10 [3-b]). Inasmuch as the statute of limitations applicable to a cause of action for assault and/or battery is one year, claimant may, if he so chooses, seek the relief requested by way of a motion to file a late claim pursuant to Court of Claims Act § 10 (6).
To the extent claimant seeks to amend the claim to allege a cause of action arising from the negligent operation of the inmate programming, the State is immune from liability for such discretionary determinations (see McLean v City of New York, 12 NY3d 194, 202 ; Tango v Tulevech (61 NY2d 34, 40 ). As stated by the Court of Appeals in Tango "when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice" (id.). Here, Directive 4803 (claimant's Exhibit Q) makes clear that inmate program assignments are discretionary. This Directive states, in pertinent part: "When a program and/or work assignment is provided to a an inmate, it is done so entirely at the discretion of the facility administration" (claimant's Exhibit Q, § V [B]). Moreover, even if claimant alleged a violation of a ministerial rule or regulation (which he did not), this Court lacks jurisdiction to review such administrative determinations (see Pratow Corp. v State of New York, 148 AD3d 1065 [2d Dept 2017]; Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142 [3d Dept 2009], lv denied 12 NY3d 712 ).
Accordingly, claimant's motion to amend his claim is denied.
September 15, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. 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."