J.C., Claimant, v. The State of New York, Defendant. (2023)

Following a liability trial, this Court found defendant the State of New York 100% liable to claimant, a formerly incarcerated individual, for the violation of his constitutional right to privacy due to the presence of a female corrections officer in the operating room while claimant underwent a colonoscopy at an outside hospital (see J.C. v State of New York, UID No. 2022-015-013 [Ct Cl, dated March 3, 2022, and filed March 10, 2022] [Collins, J.]),¹ and an interlocutory judgment was entered.

Claimant now moves, pursuant to CPLR 3025 (b), to amend the claim in two ways, arguing that defendant would not be prejudiced by granting the amendments. First, claimant seeks to increase the ad damnum clause of the claim from $50,000 to $500,000, asserting that, as a previously unrepresented litigant, he did not appreciate the extent or continuing nature of the injuries caused by defendant's actions. Second, claimant seeks to add the individual corrections officers involved in the underlying incident as defendants to this action, purportedly to pursue punitive damages. Defendant does not oppose so much of claimant's application which seeks to increase the ad damnum clause. Defendant objects, however, to that part of claimant's motion which seeks the addition of the two corrections officers as defendants, arguing that the Court lacks jurisdiction over these individuals. For the reasons stated below, claimant's motion is granted only to the extent that the amount stated in the ad damnum clause may be increased.

Under CPLR Rule 3025 (b) and section 206.7 (b) of the Uniform Rules for the Court of Claims, a party may amend a pleading or supplement it at any time by leave of Court. Such leave "shall be freely given" (CPLR 3025 [b]; see also Edenwald Contr. Co., Inc. v City of New York, 60 NY2d 957, 959 [1983]).² But the determination whether to grant or deny an application to amend rests "within the sound discretion of the court" and, "absent prejudice, courts are free to permit amendment even after trial" (Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014]).

As an initial matter, claimant has failed to comply with the requirement that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [b]). Although claimant acknowledges this rule—and also claims that he has, in fact, provided a copy of the proposed amended claim to be served upon defendants—no such document is included with his submissions. However, given that the " 'limited proposed amendment[s were] clearly described in the moving papers and did not prejudice defendant,' " claimant's "error [is] merely a technical defect" that does not preclude consideration of the motion under the circumstances (Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1592 [4th Dept 2016], quoting Medina v City of New York, 134 AD3d 433, 433 [1st Dept 2015] [both citing CPLR 2001]; see also Greene v Esplanade Venture Partnership, 36 NY3d 513, 526 n 3).

Turning to the substance of claimant's application, motions for leave to amend are generally granted "in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit" (Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015] [internal quotation omitted]). However, an evidentiary showing establishing the merits of a proposed amendment is no longer required; rather, " '[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit' " (NYAHSA Servs. Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 102 [3d Dept 2017] [quoting Lucido v Mancuso, 49 AD3d 220, 229 (2d Dept 2008), appeal withdrawn, 12 NY3d 804 and 12 NY3d 813 (2009)]; see also Boliak v Reilly, 161 AD3d 625, 625 [1st Dept 2018]; Green Tree Servicing, LLC v Feller, 159 AD3d 1246, 1247 [3d Dept 2018]). As more particularly relevant here, it is also "well settled that 'in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after [a] trial, should generally be granted' " (Thomas v Laustrup, 34 AD3d 1115, 1116 [3d Dept 2006] [quoting Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 (1981), reargument denied 55 NY2d 801 (1981)]).

Here, defendant does not oppose this branch of claimant's motion or claim any prejudice, given the stage of the proceedings (see Kimso Apts., LLC, 24 NY3d at 411 ["(t)he burden of establishing prejudice is on the party opposing the amendment"]; Bynum v Camp Bisco, LLC, 155 AD3d 1503, 1504 [3d Dept 2017] [same]). Indeed, the damages trial is not scheduled to take place for approximately six more months. Further, claimant's proposed amendment to the ad damnum clause is supported, if only minimally, by the submission of an affidavit of claimant, as well as an affirmation of claimant's counsel, alleging that claimant's damages are greater than initially estimated, including the need for continued psychiatric treatment as a result of defendant's constitutional violation (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; Thomas v Laustrup, 34 AD3d at 1116-1117). Accordingly, the branch of claimant's motion seeking to amend the ad damnum clause is granted; but claimant still bears the burden to establish his entitlement to damages at trial. And although no conclusive determination regarding claimant's damages may be made until after the damages trial is held, the Court notes that claimant's reliance on Clement v County of Albany, No. 1:07-cv-00260 (N.D.N.Y 2009), 2009 WL 3863119, and Eckert v City of Deming, No. CIV 13-0727 (D. N.M 2015), 2015 WL 10383783, appears wholly inapposite; those cases are factually distinguishable inasmuch as they involved invasive body cavity searches of arrested individuals for contraband, including forced vomiting, forced sedation and manual rectal exams, and, in one case, multiple forced enemas and colonoscopy.

As to that branch of claimant's application which seeks to add two corrections officers as defendants in order to pursue a claim for punitive damages, the motion is denied. As defendant correctly notes, the Court of Claims is a court of limited jurisdiction, with power to hear claims only against the State and certain public authorities for, among other things, "the torts of [their] officers and employees while acting as such officers or employees" (Court of Claims Act § 9 [2]; see also NY Const, Art VI, § 9). This Court thus does not have jurisdiction over—and may not entertain a claim against—the individual state employees identified by claimant (see Smith v State of New York, 72 AD2d 937, 938 [4th Dept 1979] ["(T)he jurisdiction of the Court of Claims is limited and does not extend to claims against individuals"]; see also Morell v Balasubramanian, 70 NY2d 297, 300-301 [1987] [recognizing that, a claim against a state officer is, in essence, a claim "against the State when it arises from actions or determinations of the officer made in [the officer's] official role and involves rights asserted, not against the officer individually, but solely against the State"]). In addition, it is well settled that "the waiver of sovereign immunity [contained in] section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State" (Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]; see also Krohn v New York City Police Dept., 2 NY3d 329, 335 [2004] [discussing Sharapata]).Accordingly, it is hereby

ORDERED, that the motion to amend is GRANTED, in part, and this action may proceed on the original version of the claim, with the ad damnum clause hereby deemed amended to reflect an increase from $50,000 to $500,000, and the parties need not serve and file amended pleadings reflecting this change (see CPLR 3025[d]); and it is further

ORDERED, that the motion is otherwise DENIED.

May 31, 2023

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Claim, filed June 17, 2019;

2. Notice of Motion;

3. Affirmation of Peter S. Gordon, Esq., in support of motion, with exhibits and accompanying memorandum of law;

4. Affidavit of claimant, in support of motion;

5. Affirmation in opposition of Assistant Attorney General Douglas R. Kemp;

6. J.C. v State of New York, UID No. 2022-015-013, Claim No. 133224, dated March 3, 2022, and filed March 10, 2022 (Collins, J.).

FOOTNOTES

1.   Judge Collins amended the caption sua sponte to protect claimant's privacy.

2.   Claimant may not amend his claim as of right inasmuch as it has been approximately four years since defendant served its answer (see 22 NYCRR 206.7 [b] ["(A) party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it."]).

Zainab A. Chaudhry, J.