Opinion
# 2015-018-615 Claim No. 123976 Motion No. M-86211
03-09-2015
DAVID DONHAUSER v. STATE OF NEW YORK
DAVID DONHAUSER Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
As of January 1, 2012, a copy of the proposed amended or supplemented pleading is required by statute to accompany the motion to amend (CPLR 3025 [b] [as amended by L. 2011, ch 473, § 3]), which was not done here. Claimant's request for permission to amend his claim must be denied without prejudice.
Case information
UID: | 2015-018-615 |
Claimant(s): | DAVID DONHAUSER |
Claimant short name: | DONHAUSER |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 123976 |
Motion number(s): | M-86211 |
Cross-motion number(s): | |
Judge: | DIANE L. FITZPATRICK |
Claimant's attorney: | DAVID DONHAUSER Pro Se |
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 9, 2015 |
City: | Syracuse |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant makes a motion to amend his claim which was filed with the Clerk of the Court on February 25, 2014. The motion was served upon the defendant according to the attached affidavit of service on January 15, 2015. Defendant opposes the motion.
Claimant's motion papers reflect that he seeks to amend his claim, to assert additional allegations to support his cause of action for unlawful confinement. Specifically, he seeks to assert that the State actors exceeded the scope of their authority when it confined him beyond the terms of the disciplinary disposition and its reversal and expungement. Claimant seeks to also add that it was incumbent upon the State to promptly release him upon notice of the expungement. Claimant has only attached a copy of his current filed claim, he did not attach a copy of his proposed amended claim.
CPLR 3025 (b) provides that a party may amend his pleading or supplement by setting forth additional or subsequent transactions or occurrences it at any time with permission of the Court. The statute provides that "[l]eave shall be freely given upon such terms as may be
just . . ." (CPLR 3025 [b]). Although it has always been the better practice to submit a copy of the amended pleading with the motion clearly showing the proposed amendment, as of January 1, 2012, a copy of the proposed amended or supplemented pleading is required by statute to accompany the motion to amend (CPLR 3025 [b] [as amended by L. 2011, ch 473, § 3]). The failure to do so requires the denial of Claimant's motion (Dragon Head LLC v Elkman, 102 AD3d 552 [1st Dept 2013]; Williams v State of New York, UID No. 2014-038-563 [Ct Cl, DeBow, J., Dec. 19, 2014]; Koether v Sherry, 40 Misc 3d 1237 (A) [Sup Ct, Kings County 2013]; Karl's Plumbing & Heating Co., Inc. v Yevool, Inc., 41 Misc 3d 1223 [A] [Sup Ct, Queens County 2012]; Gell-Tejada v Macy's Retail Holding Inc., 2012 WL 3638857 [Sup Ct, New York County 2012]; cf Holst v Liberatore, 105 AD3d 1374 [4th Dept 2013] [noting that the motion to amend was made before amendment to 3025 [b], motion granted although proposed amended pleading not submitted]).
As a result of the foregoing, Claimant's request for permission to amend his claim must be denied without prejudice.
March 9, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) "Affidavit" of David Donhauser verified January 15, 2015, with attachments thereto.
3) Affirmation in opposition of Ray A. Kyles, Esquire, Assistant Attorney General.