Defendant's motion to dismiss claim for lost property denied. The claim specifically recites the items lost by defendant, and requests damages in a specified amount. Court of Claims Act § 11 (b) does not require more, in particular, the claim need not allege the specific value of each piece of personal property.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TOUSSAINT DAVIS, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for items that were allegedly lost by defendant's agents at Green Haven Correctional Facility (CF) in December 2017. Claimant moves for permission to amend the claim. Defendant opposes the motion and cross-moves to dismiss the claim due to noncompliance with jurisdictional pleading requirements. Claimant opposes defendant's cross motion.
Defendant's cross motion implicates the Court's jurisdiction to hear the claim and thus, it will be addressed first. The Court of Claims Act requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and. . . the total sum claimed" (Court of Claims Act § 11 [b] [emphasis added]). These pleading requirements are jurisdictional in nature, and must be strictly construed (see Lepkowski v State of New York, 1 NY3d 201, 206-207 ). The guiding principle informing the pleading requirements of Court of Claims Act § 11(b) is " ' to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (id. at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "Although absolute exactness is not required the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]).
The claim alleges that contraband was found in claimant's cell at Green Haven CF on December 5, 2017 during a search resulting in claimant being confined to the Special Housing Unit (SHU) and the removal of his personal property from his cell. The claim alleges that claimant's personal property was brought to the SHU to be inventoried by claimant, who informed the inventory officer that items of personal property were missing. The claim alleges that on December 15, 2017 claimant filed an institutional claim that alleged that the following items were lost, stolen or misplaced: (1) two pairs of sneakers; (2) a typewriter; (3) winter boots; (4) a commissary purchase of $50.00; (5) a radio/tape player; (6) 10 packs of cigarettes; (7) two polo shirts; (8) photographs; and (9) a beard trimmer. The claim alleges that the institutional claim was denied on January 9, 2018 and claimant's administrative appeal was denied by the Green Haven CF Superintendent on February 21, 2018. The claim seeks damages in the amount of $1,006.00.
Defendant argues that the claim is jurisdictionally defective because it does not specifically "particularize the value of the items lost" and defendant cannot "conduct a meaningful investigation of the potential claim" (Gavin Affirmation, ¶ 8). The Court of Claims Act requires that a claim plead the items of damages or injuries, which the instant claim does by reciting the specific items of personal property that were allegedly lost or stolen, and the total sum claimed, which was likewise pleaded in the claim (cf. Hogan v State of New York, 59 AD3d 754 [3d Dept 2009] [claim jurisdictionally defective in failing to plead the total sum claimed]). There is, however, no express statutory requirement that a claim must plead the value of each item lost. Defendant does not cite, and the Court does not find, any precedential authority that requires claimant to particularize the value of each item that contributes to the total sum claimed. Defendant argues without elaboration that it cannot meaningfully investigate the claim, yet the claim pleads the dates of the alleged loss and claimant's interaction with facility personnel about the loss, the items allegedly lost, and the dates of the administrative denials of his institutional claim, all of which appear to provide sufficient information to allow defendant to investigate and ascertain its liability. In sum, the claim is adequately pleaded and is not jurisdictionally defective, and defendant's cross motion to dismiss will not be granted.
Turning to claimant's motion to amend, CPLR 3025 (b) provides in pertinent part that "[a] party may amend his . . . pleading, or supplement it by setting forth additional or subsequent transactions or occurrences . . .". Leave to amend a claim should be freely given "unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]). Whether to grant such relief is a matter committed to the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]).
Here, claimant seeks to amend the claim by pleading the specific price and condition for each of the items that were allegedly lost and increase the ad damnum clause from $1,006 to $2,006 (see Davis Affidavit, Exhibit A [Proposed Claim], at ¶¶ 17, 31). Claimant further requests to add a paragraph that alleges that the claim was served on the Attorney General on April 16, 2018 by certified mail, return receipt requested, and would attach as an exhibit a number of documents, including the institutional claim, the administrative denials of the claim, permits and Personal Property Transferred (I-64) forms (see id., ¶ 24, Exhibit A). Defendant opposes the motion on the ground that an amendment cannot cure a jurisdictional defect (see Gavin Affirmation, ¶ 9), but the Court has concluded that the claim is jurisdictionally sound. The proposed amendment does not appear to lack merit, and defendant has not argued that it would suffer prejudice or unfair surprise by the amendment, and thus, the motion will be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-92400 is GRANTED; and it is further
ORDERED, that claimant shall file and serve the proposed amended claim in the manner set forth in the Court of Claims Act within forty-five (45) days of the date of filing of this Decision and Order, and it is further
ORDERED, that defendant shall file and serve its answer to the verified amended claim within twenty (20) days of service of the verified amended claim, and it is further
ORDERED, that defendant's cross motion number CM-92480 is DENIED.
September 20, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 131314, filed April 16, 2018;
(2) Verified Answer, filed May 25, 2018;
(3) Notice of Motion (M-92400), filed June 14, 2018;
(4) Affidavit of Toussaint Davis in Support of Application to Amend Original Claim, sworn to
June 11, 2018, with Exhibit A [Proposed Claim, with Exhibit A];
(5) Notice of Cross Motion (CM-92480), dated June 27, 2018;
(6) Affirmation of Elizabeth A. Gavin, dated June 29, 2018, with Exhibits A-D;
(7) Reply Affidavit of Toussaint Davis to Defendant's Opposition to Claimant's Motion to
Amend and in Opposition to Defendant's Cross Motion to Dismiss, sworn to July 19, 2018;
(8) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, dated August 10, 2018.