Opinion
# 2016-018-709 Claim No. 123943 Motion No. M-87507
03-24-2016
TROY McRAE v. STATE OF NEW YORK
TROY McRAE Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Information necessary to comply with Court of Claims Act 11 (b) was not supplied, and this Court lacks authority to vacate or expunge the findings of a tier hearing and the issue was previously decided by another court. Claimant's motion is denied.
Case information
| UID: | 2016-018-709 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123943 |
| Motion number(s): | M-87507 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TROY McRAE Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 24, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion filed on September 21, 2015, seeking to supplement his claim. Defendant opposes the motion.
Claimant filed a claim with the Clerk of the Court on February 18, 2014, seeking damages for injuries he sustained in an assault by another inmate at Riverview Correctional Facility on February 7, 2014. He asserts two causes of action in the claim, one for the intentional tort of assault and battery, and a second for Defendant's deliberate indifference for failing to separate Claimant and the inmate who assaulted him. Defendant interposed an answer to the claim and raised three affirmative defenses.
Claimant now seeks to add a new cause of action for abuse of discretion in issuing Claimant misbehavior reports, sending him to the Special Housing Unit (SHU), and failing to provide him with an assistant for the tier hearing. Also, Claimant is requesting that this Court issue a stay or expunge the disciplinary findings and penalties imposed as a result of the disciplinary hearing. In his supporting affidavit, Claimant states he sought an expungement of the findings in the Supreme Court, Appellate Division, Third Department. His request was denied. He indicates if the findings and penalties remain on his record, he will suffer irreparable harm because the Division of Parole will have access to these records and may deny his early release.
Defendant opposes the motion arguing Claimant has failed to attach as required a proposed amended claim. Defendant also argues the new cause of action lacks merit because the Court lacks the authority to issue a stay of the disciplinary sanctions, the proposed amendment is separate and distinct from the original claim requiring different proof and witnesses. Defendant also argues it is untimely.
A motion to amend or supplement a pleading must be accompanied by a copy of the proposed amended or supplemented pleading (CPLR 3025 [b]). The motion should be granted as long as there is no surprise or prejudice and the proposed changes are not plainly lacking in merit (CPLR 3025 [b]; Holst v Liberatore, 105 AD3d 1374 [4th Dept 2013]; Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]). Any new cause of action or claim is deemed interposed at the time of the original claim was filed and served unless it did not give notice of the matters raised by the change to the pleading (CPLR 203 [f]).
Here, Claimant has failed to provide a copy of his proposed supplemental pleading but more significant is the absence of notice in the original claim of any facts relating to the disciplinary hearing or wrongful confinement. The failure to provide Claimant with an assistant or witnesses for the disciplinary hearing for the alleged improperly issued misbehavior reports involves different and unrelated facts and personnel from those involved with the original claim (United States Fid. & Guar. Co. v Delmar Dev. Partners, LLC, 22 AD3d 1017, 1021 [3d Dept 2005]; Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Andino v State of New York, UID No. 2016-040-001 [Ct Cl, McCarthy, J., Jan. 5, 2016]; Monarch v State of New York, UID No. 2015-018-632 [Ct Cl, Fitzpatrick, J., Aug. 5, 2015]; Anderson v State of New York, UID No. 2014-009-011 [Ct Cl, Midey, Jr., J., Mar. 28, 2014]; Bookman v State of New York, UID No. 2013-015-458 [Ct Cl, Collins, J., Dec. 13, 2013]). Additionally, the new allegations do not provide the time frame for when the administrative hearing occurred, when Claimant was in the Special Housing Unit and when he was released. This information is necessary to comply with Court of Claims Act section 11 (b) and to determine the timeliness of the proposed supplement or amendment. Since the new allegations do not relate back to the date of the original claim because of the lack of notice, and it does not appear any notice of intention was served, these changes being asserted more than a year after the underlying incidents are very likely untimely (Court of Claims Act § 10 [3] and [3-b]; Alharezi v Sharma, 304 AD2d 414 [1st Dept 2003]; A to Z Assoc. v Cooper, 215 AD2d 161 [1st Dept 1995];Omni Group Farms v County of Cayuga, 199 AD2d 1033, 1035 [4th Dept 1993]; see also Defendant's Exhibit A).
In addition, this Court, one of limited jurisdiction, lacks the authority to vacate or expunge the findings of a tier hearing and the issue was previously decided by another Court. As Defendant has stated, Claimant completed his time in the Special Housing Unit as of July 31, 2014.
For all of these reasons, Claimant's motion must be DENIED.
March 24, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Letter from Claimant dated February 10, 2015. 2) "Notice of Motion." 3) Affidavit of Claimant, in support, sworn to September 9, 2015. 4) Memorandum of Law from Claimant dated September 8, 2015. 5) Affirmation in opposition of Thomas Trace, Esquire, of counsel, with exhibit attached thereto.