Opinion
# 2016-040-028 Claim No. 124915 Motion No. M-88037
04-28-2016
BRANDEN VONGPHAKDY v. THE STATE OF NEW YORK
Bosman Law Firm, LLC By: A.J. Bosman, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
Defendant's motion to amend answer to assert qualified governmental immunity granted.
Case information
| UID: | 2016-040-028 |
| Claimant(s): | BRANDEN VONGPHAKDY |
| Claimant short name: | VONGPHAKDY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124915 |
| Motion number(s): | M-88037 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Bosman Law Firm, LLC By: A.J. Bosman, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 28, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's motion to amend its Answer pursuant to CPLR 3025(b) to assert the affirmative defense that Defendant is entitled to qualified governmental immunity based upon the fact that the acts or omissions complained of in the Claim were undertaken as part of its governmental function is granted.
The Claim, which was filed with the Clerk of the Court on September 2, 2014, alleges that:
2. … Claimant was subjected to cruel and inhuman treatment while in the custody of the Capital District Secure Juvenile Detention Center where Claimant was placed by the Oneida County Department of Social Services. Inter alia, Claimant was denied access to such things as food and an adequate mattress and mental health services; denied reasonable and timely access to the bathroom … cursed at when seeking assistance; punished for seeking assistance; locked in a room without [his] consent; subjected to numerous acts of fear and intimidation including children being unnecessarily restrained, assaulted and battered by staff …Claimant was made to wash the bathrooms that were urine coated which caused a laceration and infection in a finger.
3. The State of New York was negligent in failing to provide proper oversight of said Detention Center and/or adopt and/or implement appropriate policy to safeguard against abuses. Additionally, The State of New York was negligent in that it knew or should have known of the absence of services and the abuses of said Detention Center against the children confined therein and placed Claimant at said facility and failed to take corrective action.
4. The items of damage and injuries claimed include: humiliation and embarrassment, fear, dread, emotional distress, anxiety, headaches, nausea, etc., and loss of enjoyment of life.
Defendant's Verified Answer was served upon Claimant on October 7, 2014 and filed with the Clerk of the Court on the same date. By this motion, Defendant seeks to amend its Answer to assert the affirmative defense that the State is entitled to immunity on the basis that the State's acts or omissions complained of in the Claim were undertaken as part of its governmental function; that Defendant owed the Claimant no special duty; and/or Defendant's alleged acts or omissions were the result of an exercise of discretion (Affirmation of Belinda A. Wagner, Esq., ¶ 13 and Ex. I attached).
CPLR 3025(b) provides that leave to amend a pleading "shall be freely given upon such terms as may be just," absent prejudice or surprise, and so long as such pleadings are not devoid of merit (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5; Arcuri v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]).
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]). Here, Claimant has not opposed Defendant's motion. The Court concludes that the State has made a showing that the amendment may be meritorious.
Based upon the foregoing, Defendant's motion to amend its Answer to assert the defense of qualified governmental immunity is granted. Defendant shall serve and file the Amended Answer within twenty (20) days of the date of filing of this Decision and Order.
April 28, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the State's motion: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Filed papers: Claim, Answer