Claimant's motion for permission to serve and file an amended inmate property claim increasing the amount of damages demanded is denied.
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GLASCO WRIGHT
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 17, 2018|
|See also (multicaptioned case)|
Claimant moves for permission to file and serve an amended claim raising the ad damnum clause in the inmate property claim from $4,982 to $10,000. The defendant neither opposes nor consents to the relief requested in claimant's motion.
CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 ).
Claimant states that the basis of the lost property claim is the alleged "loss/destruction of claimants ["Trial Transcripts]." Claimant asserts that the cost "to replace the ["Trial Transcript's] if in fact they can be located [by the 'Court Reporters Office'] would run well into 'thousands of dollars.'" Claimant further states that "it is now apparent that the transcript's can not be located as those who were in possession of said records are long retired, or have passed on. Which makes the documents invaluable."
The applicable inmate property regulation, 7 NYCRR 1700.8 (a) (4), discusses valuation of lost legal papers:
"Lost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value,' that is, no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value. If an inmate claims that there is a cost to reproduce the lost papers, then the inmate should produce an estimate for the cost to reproduce the lost papers, which normally should not exceed the cost shown in the bill for the original papers."
Claimant has not shown that the subject trial transcripts (dating from 1989-1990) are of any use or value in any pending or future legal proceeding. Additionally, claimant has not proven any specific cost of replacing the trial transcripts or whether it is even possible to replace the allegedly lost trial transcripts.
Claimant has, consequently, failed to show that the requested amendment is meritorious.
The claimant's motion to amend the claim to increase the ad damnum clause in his inmate property claim is denied.
December 17, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion to Increase Ad Damnum Clause of Complaint Claim No. 131663, filed November 1, 2018;
2. Affidavit of Glasco Wright, sworn to October 29, 2018, and annexed exhibits;
3. Affirmation in Response to Motion to Amend of Glenn C. King, dated November 7, 2018.