Opinion
# 2019-058-011 Claim No. 132203 Motion No. M-94502
10-02-2019
MICHAEL BONANO v. THE STATE OF NEW YORK
D. Andrew Marshall, Esq., P.C. By: D. Andrew Marshall, Esq. Hon. Letitia James, New York State Attorney General By: Ray A. Kyles, Esq., Assistant Attorney General
Synopsis
Amended Claim filed as of right was a nullity; Motion for leave to amend Claim denied on ground that Court lacks jurisdiction over proposed amendments.
Case information
| UID: | 2019-058-011 |
| Claimant(s): | MICHAEL BONANO |
| Claimant short name: | BONANO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132203 |
| Motion number(s): | M-94502 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | D. Andrew Marshall, Esq., P.C. By: D. Andrew Marshall, Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Ray A. Kyles, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 2, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 3025 (b) for leave to amend his Claim. Defendant opposes the motion. For the reasons that follow, the motion is denied.
On October 29, 2018 Claimant, then pro se, filed this Claim alleging that he was assaulted by two other inmates on October 27, 2017 at Five Points Correctional Facility (see Affirmation of D. Andrew Marshall, Ex A). Defendant filed an answer to the Claim on November 26, 2018 (see id. Ex C). On August 7, 2019 D. Andrew Marshall, Esq. filed a notice of appearance on Claimant's behalf. Shortly thereafter, Mr. Marshall filed a "Amended Notice of Claim for Damages" purportedly as of right pursuant to CPLR 3025 (a) (see Affirmation of D. Andrew Marshall ¶ 10 & Ex E). However, Claimant's time to amend his Claim as of right had long expired (see CPLR 3025 [a]; 22 NYCRR 206.7 [b]). Accordingly, to the extent the "Amended Notice of Claim for Damages" seeks to amend the Claim, it is a nullity (see Hulse v Wirth, - AD3d -, 2019 NY Slip Op 06483, *3 [2d Dept 2019] ["(s)ince the plaintiffs filed the amended complaint outside the time periods specified in CPLR 1003 and 3025(a), and before obtaining leave of court or a stipulation of the parties who had appeared in the action, the amended complaint is a nullity"]; Khedouri v Equinox, 73 AD3d 532, 533 [1st Dept 2010]; Brown v State of New York, UID No. 2018-041-051 [Ct Cl, Milano, J., July 20, 2018]).
The Court notes that, in Court of Claims' practice, there are two documents, a Notice of Intention to File a Claim and a Claim. There is no "Notice of Claim." Nevertheless, the Court will consider Claimant's "Amended Notice of Claim for Damages" as a proposed amended claim (see Schatz-Ketiz v State of New York, UID No. 2015-050-058 [Ct Cl, Lynch, J., Oct. 28, 2015]).
Claimant now moves pursuant to CPLR 3025 (b) for leave to amend the Claim. Attached to Claimant's motion is the same "Amended Notice of Claim for Damages" that Claimant sought to file as of right (see Affirmation of D. Andrew Marshall, Ex E). The proposed amended Claim seeks to add Department of Corrections and Community Supervision (DOCCS) Correction Officer John Creggo, twenty unknown Correction Officers, Superintendent John Colvin, and Deputy Superintendent of Security "John" Rocker as Defendants (see Affirmation of D. Andrew Marshall ¶ 22 & Ex E at 1). Additionally, the proposed amended Claim alleges additional causes of action for (1) violation of Claimant's right against cruel and unusual punishment guaranteed by the Eighth Amendment of the United States Constitution and article I, § 5 of the New York Constitution; (2) "deliberate indifference" to a substantial risk of harm posed to Claimant (Affirmation of D. Andrew Marshall, Ex E at 2). Defendant opposes Claimant's motion on the ground that the proposed amendments to the Claim are beyond this Court's jurisdiction.
CPLR 3025 (b) provides that "[a] party may amend his or her 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." "Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit"(Great Lakes Motor Corp. v Johnson, 156 AD3d 1369, 1370 [4th Dept 2017] [internal quotation marks and citation omitted]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]). For example, a motion to amend a claim is properly denied where the Court lacks subject matter jurisdiction over the proposed amended claim (see e.g. Washington v State of New York, 151 AD3d 1142, 144 [3d Dept 2017]).
Here, Claimant's motion must be denied as this Court lacks subject matter jurisdiction over the proposed amendments to the Claim. It is well settled that this Court's limited jurisdiction does not extend to claims against individual defendants (see Court of Claims Act §§ 8, 9; Smith v State of New York, 72 AD2d 937, 938 [4th Dept 1979] ["the jurisdiction of the Court of Claims is limited and does not extend to claims against individuals"]; Spirles v Woodworth, UID No. 2008-044-523 [Ct Cl, Schaewe, J., Mar. 7, 2008] [dismissing claim against individual correction officers for lack of jurisdiction]; Antonecchia v Goord, UID No. 2006-010-030 [Ct Cl, Ruderman, J., Sept. 18, 2006] [dismissing claim against Commissioner of the Department of Correctional Services and another individually named defendant for lack of jurisdiction]). Thus, the Court lacks jurisdiction over the individual DOCCS' employees that Claimant seeks to add as Defendants in his proposed amended claim.
Moreover, as Defendant correctly notes, this Court lacks subject matter jurisdiction over a claim under the Federal Constitution which must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]). Consequently, Claimant's proposed cause of action for a violation of his Eighth Amendment rights against cruel and unusual punishment and related claim for "deliberate indifference" (Farmer v Brennan, 511 US 825, 829 [1994] ["A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment"]) is beyond this court's jurisdiction (see Zaire v State of New York, UID No. 2015-032-006 [Ct Cl, Hard, J., Dec. 7, 2015]).
Additionally, the availability of a federal constitutional claim and common law tort claim for negligence forecloses a State constitutional tort claim (see Waxter v State of New York, 33 AD3d 1181, 1181-1182 [3d Dept 2006]; Williams v State of New York, 137 AD3d 1579, 1580 [4th Dept 2016] ["(s)tate constitutional claims was neither necessary nor appropriate to ensure the full realization of their rights, because the alleged wrongs could have been redressed by timely interposed common-law tort claims" (internal quotation marks, citation and alteration omitted)], appeal dismissed & lv denied 28 NY3d 958 [2016]; Rodriguez v State of New York, UID No. 2013-038-555 [Ct Cl, DeBow, J., Sept. 17, 2013] ["claimant's state constitutional right to due process is parallel to the federal constitutional right, which may be enforced in a federal action pursuant to 42 USC § 1983, and the availability of this alternative remedy forecloses a state constitutional tort claim"]). In sum, this Court lacks subject matter jurisdiction to entertain the proposed amended claim. Accordingly, the motion is denied.
The Clerk of the Court received a document on September 23, 2019, five (5) days after the return date of this motion, entitled "Verified Claim." The Court has not considered this document in reaching its decision herein, as the papers were received after the Motion's return date.
Accordingly, it is hereby
ORDERED, Claimant's motion number M-94502 is denied, and it is further
ORDERED, that the Court hereby schedules a status conference by telephone on December 17, 2019 at 10:00 a.m. The Court shall initiate the call.
October 2, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion, dated August 23, 2019. 2) Affirmation of D. Andrew Marshall, Esq., dated August 22, 2019 and exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General in Opposition to Claimant's Motion to Amend Claim, dated September 9, 2019.