Opinion
# 2015-018-616 Claim No. 123574 Motion No. M-86321
04-20-2015
ERIC EDMUNDSON v. STATE OF NEW YORK
ERIC EDMUNDSON Pro Se None
Synopsis
Claimant seeks to amend his claim to assert a constitutional tort cause of action, the proposed amendment lacks potential merit. The Court of Claims lacks jurisdiction over federal constitutional tort claims. State constitutional tort claims are only actionable where there are no other options to redress. Claimant also seeks the production of certain documents to support his pending claim by this motion, however, this relief is not appropriate at this time. Additionally, Claimant seeks an order directing Defendant to provide an evaluation at an outside medical facility. The Court of Claims does not have the authority to grant such relief. Claimant's motion is DENIED.
Case information
| UID: | 2015-018-616 |
| Claimant(s): | ERIC EDMUNDSON |
| Claimant short name: | EDMUNDSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123574 |
| Motion number(s): | M-86321 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ERIC EDMUNDSON Pro Se |
| Defendant's attorney: | None |
| Third-party defendant's attorney: | |
| Signature date: | April 20, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion for permission to "amend complaint" pursuant to CPLR 3025, which was filed with the Clerk of the Court on February 5, 2015. An affidavit of service attached to Claimant's motion documents reflects that he served Defendant with a copy of the motion on February 1, 2015. Claimant thereafter filed a second "Notice for Leave to Amend Complaint Pursuant to CPLR 3025(b)" on March 12, 2015, with a different caption that includes Upstate Medical Hospital, certain named officers, Mohawk Correctional Facility, Watertown Correctional Facility, "Doctor," "Nurse," and the named "IGRC Supervisor." Claimant has not provided an affidavit of service for this motion; however, an "Affirmation" of service he attached does not support service upon the Attorney General since the address where he sent a copy of the motion documents is the address for the Clerk of the Court of Claims. Since there is no adequate proof of service, the Court will not consider the documents filed March 12, 2015.
Claimant is not authorized to provide an affirmation in lieu of an affidavit (see CPLR 2106).
On November 27, 2013, Claimant filed a claim against the State of New York seeking $100,000 in damages for the alleged negligence of the State in allowing Claimant to be assaulted at Watertown Correctional Facility on July 22, 2013 at 9:30 a.m. The claim was served on October 14, 2013, and alleges that the nurse and sergeant filed false reports trying to cover up the injuries he received from being repeatedly punched by two correction officers. Defendant interposed a verified answer with two affirmative defenses which was filed on November 20, 2013.
By this motion, Claimant seeks to add new allegations arising from January 13, 2015, for medical malpractice and "retaliation." Claimant states that on that day he was lightheaded and had pain in the location where he had surgery in 2013. He alleges that he was informed that he still had stitches from the surgery and Mohawk Correctional Facility has refused to give Claimant "adequate treatment, therapy or examination." As a result of this alleged wrongdoing, Claimant seeks an independent medical examination and production of certain documents. In another document labeled "Affidavit Notice for Leave to Amend Complaint CPLR 1101 (f)" which Claimant served with his motion, he asserts he is seeking $300,000 for a "constitutional tort" 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]). As long as the proposed amendment is not lacking in merit and does not prejudice or surprise the Defendant, it should be permitted (Shabazz v Verizon N.Y., Inc., 83 AD3d 815 [2d Dept 2011]).
Although it has always been the better practice to submit with the motion a copy of the amended pleading clearly setting forth the existing pleading with all proposed amendments, 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 has been found to warrant the denial of a claimant's motion (VFS Fin. v Insurance Servs. Corp., 111 AD3d 505 [1st Dept 2013]; 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]).
To the extent Claimant seeks to amend his claim to assert a constitutional tort cause of action, the proposed amendment lacks potential merit. The Court of Claims lacks jurisdiction over federal constitutional tort claims (Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). State constitutional tort claims are only actionable where there are no other options to redress (see Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Augat v State of New York, 244 AD2d 835, 839 [3d Dept 1997], lv denied 91 NY2d 814 [1998]).
Claimant seeks the production of certain documents to support his pending claim by this motion, however, this relief is not appropriate at this time. Claimant should serve a discovery demand seeking the information he wants upon the Attorney General in accordance with CPLR Article 31. An order compelling disclosure is only permitted where Defendant has failed to respond or comply with a discovery demand (see CPLR 3124; Poplawski v Gross, 115 AD3d 838 [2d Dept 2014]; Rodriguez v State of New York, UID No. 2012-015-307 [Ct Cl, Collins, J., March 12, 2012]). Additionally, to the extent Claimant seeks an order directing Defendant to provide Claimant with an evaluation at a medical facility outside the correctional facility, the Court of Claims does not have the authority to grant such relief. The Court of Claims is a court of limited jurisdiction, and is authorized to only hear claims against the State of New York for money damages (Court of Claims Act § 9).
Accordingly, Claimant's motion is DENIED.
April 20, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice for Leave to Amend Complaint.
2) Unsworn "Affidavit" of Claimant in support.