Opinion
# 2013-028-530 Claim No. 121514 Motion No. M-83905
10-25-2013
REUBEN ROSS, 94-A-5692 v. THE STATE OF NEW YORK
Claimant's attorney: REUBEN ROSS, PRO SE Defendant's attorney: HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Thomas G. Ramsay, Esq. Assistant Attorney General
Synopsis
Claimant's motion for leave to amend the claim is denied.
Case information
UID: 2013-028-530 Claimant(s): REUBEN ROSS, 94-A-5692 Claimant short name: ROSS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121514 Motion number(s): M-83905 Cross-motion number(s): Judge: RICHARD E. SISE Claimant's attorney: REUBEN ROSS, PRO SE HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Thomas G. Ramsay, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: October 25, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following were read and considered with respect to Claimant's motion No. M-83905 for leave to file an amended claim:
1. Claimant's "Addendum" verified August 5, 2013, with annexed Exhibits A and B filed by the Court on August 8, 2013 as motion No. M-83905 for leave to file an amended claim;(1)
2. Opposing affirmation of Assistant Attorney General Thomas G. Ramsay affirmed August 30, 2013, with annexed Exhibit A.
Filed papers: Claim filed July 11, 2012; Answer filed August 13, 2012; Answer to Addendum filed August 28, 2013.
Claimant, an inmate proceeding pro se, seeks damages in claim No. 121514 for excessive or wrongful confinement on keeplock status following a hearing on a Tier III misbehavior report while he was incarcerated at Groveland Correctional Facility (Groveland). Claimant served an "Addendum" to claim No. 121514 which was filed by the Court on August 8, 2013 as a motion to amend the claim. Defendant, apparently unsure as to how the Court would treat Claimant's "Addendum," filed an answer to the addendum and proffered an opposing affirmation objecting to Claimant's failure to serve motion papers in compliance with CPLR 2214 (a) and (b) and section 206.8 (a) of the Uniform Rules for the Court of Claims (22 NYCRR 206.8 [a]).
Pursuant to section 206.7 (b) of the Uniform Rules for the Court of Claims, "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." It has been approximately one year since Defendant filed its answer to the claim. Accordingly, Claimant may not serve and file an amended claim as of right. Pursuant to CPLR 3025 (b), "[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 if the amendment is not plainly lacking in merit and does not unduly prejudice or surprise the nonmoving party" (Vermont Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d 1218, 1219 [3d Dept 2012]). The decision to grant leave to amend is left to the discretion of the Court and will not be disturbed absent abuse of discretion (Swergold v Cuomo, 70 AD3d 1290 [3d Dept 2010]). Leave to amend should not be granted, however, "where the proposed amendment is patently lacking in merit" (Razey v Wacht, 281 AD2d 941, 942 [4th Dept 2001]. As the proponent of the motion to amend, Claimant has the burden of proving that the proposed amendment has merit (Cowsert v Macy's E., Inc., 74 AD3d 1444 [3d Dept 2010].
Unfortunately, Claimant neglected to provide a notice of motion, an affidavit explaining the need for and the basis of the amendment, or a proposed amended claim setting forth the precise nature of the amendment. From the last paragraph of the addendum, it appears that Claimant may not be attempting to amend the claim, but rather attempting to add the exhibits annexed to the addendum as exhibits to the claim. If it is Claimant's intention to add documents to the claim, then an amendment to the claim is unnecessary. Assuming that the proposed exhibits contain information that is relevant and related to the wrongful confinement cause of action alleged in the claim, then Claimant can offer the documents as exhibits at the time of trial. Because it is unclear exactly what Claimant wishes to amend or add to the claim, Claimant's motion to amend the claim must be denied. Accordingly, it is hereby
ORDERED, that Claimant's motion No. M-83905 to amend claim No. 121514 is denied.
October 25, 2013
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims