Claimant's motion for permission to serve and file amended claim is granted where amendment simply amplifies allegations of claim and amendment would not prejudice the defendant.
|Claimant(s):||FRANCISCO SANTOS, 13-A-0532|
|Claimant short name:||SANTOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||FRANCISCO SANTOS
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 31, 2020|
|See also (multicaptioned case)|
Claimant moves pursuant to CPLR 3025 (b) for permission to file and serve an amended claim in this action which alleges that defendant negligently failed to protect the inmate-claimant from an assault by a fellow inmate.
The defendant opposes the motion to the extent it seeks to add a cause of action ("negligent investigation") not recognized in New York.
CPLR 3025 (b) provides for the amendment of a pleading either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR 3025 [b]). Case law provides that "if 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 responds to the proposed amended claim by asserting that the amended claim arguably appears to be adding a cause of action for "negligent investigation." Defendant correctly points out that no such cause of action is recognized in New York (see Russ v State Employees Fed. Credit Union (SEFCU), 298 AD2d 791, 793 [3d Dept 2002]: "[C]laim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York").
Defendant concedes, however, that the proposed amended claim can also be read to merely amplify the allegations of the original claim which alleged that defendant negligently failed to protect the inmate-claimant from an assault by a fellow inmate.
Defendant further concedes that it will suffer no prejudice if the Court permits the service and filing of the proposed amended claim.
The Court finds that the proposed amended claim adds no new cause of action to the existing claim alleging that defendant negligently failed to protect the inmate-claimant from an assault by a fellow inmate but rather, as suggested by defendant, simply amplifies the allegations underlying the original claim.
The claimant's motion to serve and file the proposed amended claim is granted.
Claimant is ordered to serve and file his amended claim within forty-five (45) days of the date of filing of this Decision and Order.
August 31, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed May 20, 2020;
2. Affidavit of Francisco Santos, sworn to March 17, 2020, and attached exhibits, including proposed amended claim;
3. Affirmation in Response of Glenn C. King, dated July 13, 2020;
4. Reply Affidavit of Francisco Santos, sworn to July 25, 2020.