New York State Court of Claims

New York State Court of Claims
LABER v. THE STATE OF NEW YORK, # 2018-032-067, Claim No. 129469, Motion No. M-91973


Claimant's motion to amend the claim is granted.

Case information

UID: 2018-032-067
Claimant(s): MARIO LABER
Claimant short name: LABER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129469
Motion number(s): M-91973
Cross-motion number(s):
Claimant's attorney: Sivin & Miller, LLP
By: Edward Sivin, Esq.
Defendant's attorney: Hon. Barbara D. Underwood, Attorney General
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 9, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, as an inmate proceeding pro se, filed the instant claim on March 23, 2017, alleging claims of assault and battery. Specifically, claimant alleges that, on March 26, 2016 at Greene Correctional Facility (Greene C.F.), he was assaulted multiple times by correction officers without provocation. First, claimant alleges that Correction Officer Maldonado ("Maldonado") punched claimant in the face and kicked him in the knee while claimant was walking to the mess hall for breakfast (Verified Claim 4). Later that same day, claimant alleges that Maldonado escorted claimant to the dayroom area and ordered claimant to lay face down on the floor (id. 14). Maldonado then activated his emergency pin, and when correction officers responded, Maldonado told them that claimant had assaulted him with a broom (id. 17-20). The responding officers then escorted claimant to a vestibule where they punched and kicked him (id. 21-22). The officers continued assaulting claimant and verbally harassed him when they took him to the infirmary to be examined and photographed. After being examined and photographed, claimant was sent to the Special Housing Unit (SHU). However, the nurse on duty at the SHU demanded that claimant be sent to the emergency room as he was visibly injured (id. 37). Claimant was then taken to Albany Medical Center where he was diagnosed and treated. He pleaded with the staff at Albany Medical Center to not discharge him back to Greene C.F. Claimant was discharged and escorted to Coxsackie Correctional Facility (Coxsackie C.F.). On the way to Coxsackie C.F., the correction officers allegedly stopped the van, taunted claimant, and held a plastic bag over his head for a period of time (id. 44-46).

Claimant reported the assault as soon as he arrived at Coxsackie C.F. and was later spoken to by a representative from the DOCCS Office of Special Investigations. On December 23, 2016, the Greene County District Attorney indicted claimant for assaulting a correction officer (Verified Claim 61).

Claimant, through his newly retained counsel, now seeks to file and serve an amended claim alleging two new causes of action for malicious prosecution and malicious abuse of process.(1) The proposed amended claim incorporates all of the allegations stated in the original claim and adds new allegations. The proposed amended claim states that several correction officers and sergeants provided false and fabricated evidence to a grand jury, resulting in claimant's indictment (Proposed Claim 76). On or about July 13, 2017, claimant was acquitted of all charges after being found not guilty by a jury (id. 77). Defendant opposes the motion on the ground that the proposed amended claim fails to state a cause of action as to the malicious prosecution and malicious abuse of process claims.

Pursuant to CPLR Rule 3025 (b) and 206.7 (b) of the Uniform Rules for the Court of Claims, a party may amend a pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of Court. It is well settled that leave to amend a pleading ' "shall be freely given' absent prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b] and Fahey v County of Ontario, 44 NY2d 934, 935 [1978]) or a showing that the proposed amendment plainly lacks merit (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166 [1989]). "A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave to amend will be granted unless such sufficiency or lack of merit is free and clear from doubt" (Assevero v Hamilton & Church Props., LLC, 154 AD3d 728 [2d Dept. 2017]). "The court need only determine whether the proposed amendment is 'palpably insufficient' to state a cause of action or defense, or is patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept. 2008]). To defeat a motion to amend a claim, 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]). The opposing party must show that it has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position (see Garrison v Clark Mun. Equip., 239 AD2d at 742-743; Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept. 1994]). Initially, the Court notes that defendant does not argue that it would be significantly prejudiced by the amendment of the claim (Garrison v Clark Mun. Equip., 239 AD2d at 742).

Turning first to the claim of malicious prosecution, claimant was required to allege " 'that a criminal proceeding was commenced, that it was terminated in [his] favor . . . , that it lacked probable cause, and that the proceeding was brought out of actual malice' " (Krzyzak v Schaefer, 52 AD3d 979, 980 [3d Dept. 2008], quoting Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; see Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]). Here, claimant alleges that a criminal proceeding was initiated against him, that he was found not guilty, that the evidence used against him was fabricated, and that the charges against him were brought to cover up the wrongful conduct of correction officers. Accordingly, the Court finds that claimant's malicious prosecution claim is not devoid of merit, and permits claimant to file an amended claim stating a claim for malicious prosecution.

Turning next to claimant's proposed cause of action for malicious abuse of process, "[t]he essential elements of a cause of action sounding in abuse of process are: '(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective' " (DeMartino v Golden, 150 AD3d 1200, 1201 [2d Dept. 2017], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]). Here, claimant contends that the correction officers intentionally gave false testimony in front of a grand jury with the intent to harm claimant. Thus, it appears that the cause of action is not palpably insufficient or without merit (see D'Amico v Correctional Medical Care, Inc., 120 AD3d 956, 960 [4th Dept. 2014] [finding that "making a false report to the police that results in the issuance of criminal process may support a claim for abuse of process"]; compare Liss v Forte, 96 AD3d 1592, 1593 [4th Dept. 2012] [finding that "[t]he remedy for a party against whom a false criminal complaint is filed lies in the tort of malicious prosecution [as opposed to malicious abuse of process]"). Defendant argues that the DOCCS correction officers and sergeants identified by claimant did not "issue" or "use" the process. However, in the D'Amico case, the Fourth Department found that a malicious abuse of process cause of action could be sustained as asserted against the individuals allegedly providing false statements (D'Amico v Correctional Medical Care, Inc., 120 AD3d at 960; see Parkin v Cornell Univ., 78 NY2d 523, 530 [1991]). The Court also rejects defendant's contention that claimant failed to plead actual or special damages. The claim states that claimant suffered damages in the form of lost earnings (Proposed Claim 66), and claimant has incurred legal expenses in bringing the instant claim. Accordingly, the Court will permit claimant to amend his claim to assert a cause of action for malicious abuse of process.

Based upon the foregoing, it is hereby

ORDERED that claimant's motion to amend the claim (M-91973) is granted; and it is further

ORDERED that claimant is directed to serve and file his Amended Claim within forty (40) days of the date of filing of this Decision and Order, as provided in Section 206.7(b) of the Uniform Rules for the Court of Claims; and it is further

ORDERED that defendant's Answer to the Amended Claim shall be served and filed within forty (40) days after service of the Amended Claim.

October 9, 2018

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Verified Claim, filed on March 23, 2017.

2. Notice of Motion, dated March 10, 2018; and Affirmation in Support of Motion, affirmed by Edward Sivin, Esq. on March 10, 2018, with Exhibits 1 through 6 annexed thereto.

3. Affirmation in Opposition to Claimant's Motion, affirmed by Belinda A. Wagner, AAG on May 8, 2018.

4. Reply Affirmation, affirmed by Edward Sivin, Esq. on May 15, 2018.

1. Claimant's motion also sought to add a cause of action for the denial of his right to a fair trial. However, claimant withdrew that cause of action in his reply papers (Reply Affirmation 2).