Claimant's motion for leave to amend the claim denied for failure to include the proposed amended claim.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERTO RODRIGUEZ, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||October 6, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained when he was allegedly assaulted by a fellow inmate in the recreation yard at Green Haven Correctional Facility (CF). Claimant now moves for leave to amend his claim. Defendant has not opposed the motion.
The claim alleges that on or around January 17, 2019, claimant was stabbed multiple times by a fellow inmate in the Green Haven CF recreation yard and suffered a collapsed lung as a result (see Claim No. 132872, ¶ 2). The claim further alleges that claimant was the victim of a similar attack in the Green Haven CF recreation yard in September 2014 and that he nearly died as a result (see id. at ¶ 3). The claim alleges that defendant breached its duty to protect claimant from inmate-on-inmate attacks by failing to ensure that there were metal detectors at each entrance to the recreation yard or that there was a sufficient number of correction officers stationed in the recreation yard at all times, and that defendant's negligence proximately caused claimant's injuries (see id. at ¶ 4).
The CPLR permits a party to "amend his or her pleading . . . at any time by leave of court" (CPLR 3025 [b]). 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]), and whether to grant such relief is a matter within the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]). The statute further provides that "[a]ny motion to amend . . . pleadings shall be accompanied by the proposed amended . . . pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [b]). The failure to submit a proposed amended pleading in support of a motion to amend the pleading is a fatal defect that compels denial of the motion (see McLean v State of New York, UID No. 2016-040-098 [Ct Cl, McCarthy, J., Nov. 15, 2016]; Williams v State of New York, UID No. 2014-038-563 [Ct Cl, DeBow, J., Dec. 19, 2014]; White v State of New York, UID No. 2013-038-531 [Ct Cl, DeBow, J., May 28, 2013]).
Claimant previously made a motion for leave to amend the claim, which was denied without prejudice to a subsequent motion for his failure to include a proposed amended claim with his submission (see Rodriguez v State of New York, UID No. 2020-038-506 [Ct Cl, DeBow, J., Jan. 17, 2020]). In support of the instant motion, claimant has submitted a document entitled "Amended Claim," in which he explains that the claim erroneously addressed the September 2014 incident, which claimant now asserts is unrelated to the January 17, 2019 incident that he states is the basis of his claim (see Amended Claim, pg. 1). The "Amended Claim" then sets forth two paragraphs of underlined text detailing the "acts and omissions of the defendant" that gave rise to the instant claim, as well as an amended damages clause (see id. at pp. 1-2). Claimant then explains that "[t]hese corrective measures" address the January 17, 2019 incident and detail the injuries he allegedly sustained as a result (id. at pg. 2). Claimant states that "[t]his is an Amended Claim" that asserts causes of action against the State sounding in negligence, failure to protect, and "Failure to Adequately Secure the Green Haven Corr. Fac. for inmates and staff alike," and that the original claim is appended to his submission as Exhibit A (id. [emphasis in original]).(1)
Although claimant has attempted in this second motion to correct the deficiencies in his prior motion, the document entitled "Amended Claim" is not, in fact, an amended claim that shows the additions and changes to the claim, but rather an unsworn statement in support of the motion that appears to highlight how claimant proposes to amend the claim. However, in the absence of a proper proposed amended pleading "clearly showing the changes or additions to be made" as required by CPLR 3025 (b), the Court cannot grant claimant the relief claimant requests. The proper procedure is to submit a proposed amended claim, separate from the affidavit in support of the motion to amend, that includes the allegations in the initial claim that claimant intends to retain and also includes the amended or supplemental allegations that can be easily discerned as changes or additions to the initial claim.
Accordingly, it is
ORDERED, that motion number M-95600 is DENIED without prejudice to a subsequent motion to amend that is accompanied by a copy of the proposed amended pleading.
October 6, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132872, filed April 2, 2019;
2. Verified Answer, filed May 14, 2019;
3. Decision and Order, Rodriguez v State of New York, UID No. 2020-038-506 (Ct Cl, DeBow, J., January 17, 2020);
4. Correspondence of Roberto Rodriguez, dated June 11, 2020;
5. Notice of Motion to Amendment of Claim, dated June 11, 2020;
6. "Amended Claim," undated, with attachment;
7. Affidavit of Service of Roberto Rodriguez, sworn to June 11, 2020.
1. Although claimant indicates that a copy of his original claim is included as Exhibit A to his submission, no such exhibit is appended to his moving papers. As a courtesy, a copy of the original claim is included with this decision and order.