Opinion
# 2018-015-145 Claim No. 129666 Motion No. M-91917
08-09-2018
NEHEMIAH NASH v. THE STATE OF NEW YORK
Nehemiah Nash, Pro Se Honorable Barbara D. Underwood, Attorney General By: Joan Matalavage, Esq., Assistant Attorney General
Synopsis
Claimant's motion to amend both his notice of intention as well as the claim was denied.
Case information
| UID: | 2018-015-145 |
| Claimant(s): | NEHEMIAH NASH |
| Claimant short name: | NASH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129666 |
| Motion number(s): | M-91917 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Nehemiah Nash, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Joan Matalavage, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 9, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to amend his Notice of Intention to File a Claim and Claim.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS) seeks damages for a period of disciplinary confinement and for personal injuries and the loss of certain personal property, all of which allegedly occurred following the issuance of a Misbehavior Report and claimant's subsequent confinement to his cell and the Special Housing Unit. The claim sets forth five causes of action: (1) wrongful confinement arising from the issuance of a false misbehavior report and the manner in which the prison disciplinary hearing was conducted; (2) negligence arising from the manner in which the disciplinary hearing was conducted; (3) the loss of personal property entrusted to DOCCS' custody but not returned; (4) negligent maintenance of the SHU resulting in a spider bite; and (5) wrongful confinement for the 21-day period claimant was confined following the administrative reversal of the hearing officer's determination.
In support of these causes of action, claimant alleges that following the issuance of a false Misbehavior Report on May 4, 2016, he was confined to his cell and then the Special Housing Unit (SHU) at Great Meadow Correctional Facility. At the disciplinary hearing which commenced on May 9, 2016 and ended on May 23, 2016, the claimant was found guilty of soliciting and making threats of violence. In preparation for his transfer "to another SHU confinement facility," claimant was brought to the draft room of Great Meadow Correctional Facility on June 6, 2016 where he noticed certain of his personal property was missing (Claim, ¶ 18). Following claimant's transfer to the SHU at Marcy Correctional Facility, claimant was bitten by a spider on July 14, 2016, which allegedly caused an allergic reaction that included swelling, cold sweats, pain, loss of appetite and insomnia (claim, ¶ 21). Claimant filed an administrative appeal of his hearing determination, which resulted in a reversal on August 16, 2016. Notwithstanding the date of the decision on appeal, claimant alleges he was not released from confinement in the SHU until September 7, 2016, 21 days after the hearing determination was reversed (claim, ¶ 25). While claimant's first and second causes of action seek damages for the entire period of his disciplinary confinement (May 4, 2016 through September 6, 2016), his fifth cause of action seeks damages solely for the 21-day period he was confined to the SHU following the administrative reversal.
Section 206.7(b) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR 3025, "except that 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." CPLR 3025(b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of the parties . . ." It is well settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health and Hosps. Corp., 59 NY2d 755,757 [1983]; Colucci v Canastra, 130 AD3d 1268 [3d Dept 2015]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [3d Dept 2009]). Leave to amend is properly denied, however, " if the moving party fails to make some evidentiary showing that the proposed amendment has merit" (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1327 [3d Dept 2010], lv to dismiss in part, denied in part 17 NY3d 770 [2011]; Cowsert v Macy's E., Inc., 74 AD3d 1444, 1445 [3d Dept 2010]; Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1289 [3d Dept 2009]).
Claimant's request to amend his notice of intention must be denied as a notice of intention is required to be served within 90 days of the date the claim accrued (Court of Claims Act §§ 10 [3], 10 [3-b]). Notices of intention served after that date do not extend the period of time to serve and file a claim (id.; see also Court of Claims Act § 11).
Claimant's request to amend his claim is also denied as the amendments he wishes to make are unnecessary. The facts claimant wishes to add to the claim do not clarify the allegations in the claim and may be set forth in a bill of particulars if the defendant requests one, or in response to discovery. Short of that, claimant can testify at trial with respect to the injuries he suffered or the events that transpired during and after the hearing.
Accordingly, claimant's motion is denied.
August 9, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion, dated January 29, 2018;
2. Affidavit in support of Nehemiah Nash, sworn to February 5, 2018 with Exhibits H, 1 and 2;
3. Affidavit in opposition of Joan Matalavage, Esq., sworn to April 26, 2018, with Exhibits A - C;
4. Reply affidavit of Nehemiah Nash, sworn to May 10, 2018.