Claimant's cross-motion for permission to serve and file second amended claim is granted where defendant would not be surprised or prejudiced and where second amended claim is not shown to be without merit; defendant's motion to dismiss the claim and amended claim is denied as moot.
|Claimant short name:||POULOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||HELD & HINES, LLP
By: Philip M. Hines, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Joan Matalavage, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 20, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim and amended claim in this action which primarily alleges that defendant's correction officers used excessive force and/or assaulted the inmate-claimant on November 11, 2015 at Great Meadow Correctional Facility. Claimant opposes the defendant's motion and cross-moves for permission to file and serve a second amended claim. The defendant opposes the claimant's cross-motion.
The defendant's motion argues that both the claim and amended claim set forth causes of action, including but not limited to those alleging state and federal constitutional torts, that are subject to dismissal based upon lack of jurisdiction, failure to state a cause of action and the defense of governmental discretion and/or immunity.
Claimant seeks permission to serve a second amended claim to "resolve the purported jurisdictional deficiencies raised in the defendant's motion (e.g., civil rights and medical malpractice claims)." The proposed second amended claim sets forth relatively straightforward causes of action for use of excessive force, negligent hiring and training and assault and battery, all relating to an incident on November 11, 2015 at Great Meadow Correctional Facility.
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 ).
Defendant does not offer any compelling facts or argument that the allegations of the second amended claim are jurisdictionally defective, lack merit or would cause prejudice or surprise to defendant.
The claimant's cross-motion to file and serve a second amended claim is granted. Claimant is directed to serve and file the second amended claim by ordinary mail within thirty (30) days of the filing of this Decision and Order.
The defendant's motion to dismiss the claim and amended claim is denied as moot.
June 20, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss Claim and Amended Claim, filed November 13, 2017;
2. Affidavit of Joan Matalavage, sworn to November 13, 2017, and attached exhibits;
3. Claimant's Notice of Cross-Motion, filed April 6, 2018;
4. Affirmation of Philip M. Hines, dated April 6, 2018, and annexed exhibit;
5. Affidavit in Opposition to Cross-Motion to Amend of Joan Matalavage, sworn to April 27, 2018.