| Nelson v State of New York |
| 2009 NY Slip Op 08104 [67 AD3d 1142] |
| November 12, 2009 |
| Appellate Division, Third Department |
| Edward Nelson, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Rajit S. Dosanjh of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Court of Claims (DeBow, J.), entered July 3, 2008,which, among other things, denied claimant's motion for leave to amend his claim.
Pursuant to permission from the Court of Claims in November 2005, claimant's earlier noticeof intention[FN*]was treated as a claim (see Court of Claims Act § 10 [8]) and he was directed toserve an amended claim. In his December 2005 amended claim, he sought, among other things,damages for 108 days of alleged wrongful confinement occurring in 2000 when he was held atthe Westchester County jail awaiting transfer to the Willard Drug Treatment Center, where hewas to participate in a program as a condition of his parole. Once he arrived at Willard, [*2]he refused to participate, which resulted in his parole being revokedand, as a result, he served approximately 20 months in state prison. In July 2007, claimantmoved to further amend his amended claim to seek damages for the additional 20 months heserved as a result of his refusal to participate in the Willard program and also to add a derivativecause of action by his wife. The Court of Claims denied the motion to amend. Claimant appeals.
Leave to amend is freely given provided there is no prejudice and the proposed amendmentis not plainly lacking merit (see Smith vHaggerty, 16 AD3d 967, 967-968 [2005]). "[T]he decision whether to permit anamendment to a pleading is one that lies in the discretion of the trial court and the exercise of[such discretion] will not lightly be set aside" (U.W. Marx, Inc. v Mountbatten Sur. Co.,290 AD2d 621, 623 [2002] [internal quotation marks and citations omitted]). "Although [m]erelateness in seeking such relief is not in itself sufficient to bar amendment, denial of a motion toamend is appropriate when there is prejudice to the opposing party and no showing of asatisfactory excuse for the delay" (Ciarelli v Lynch, 46 AD3d 1039, 1040 [2007] [internal quotationmarks and citations omitted]).
Claimant's proposed amendment to add a claim regarding his 20 months in state prison lacksmerit. His state prison time resulted from the revocation of his parole after he had refused toparticipate in the Willard program. This involved a quasi-judicial determination implicatingimmunity (see Arteaga v State of New York, 72 NY2d 212, 216-217 [1988]; Best vState of New York, 264 AD2d 404, 404-405 [1999]). Moreover, since claimant is alleging anew theory occurring during a different time period than was set forth in the 2001 notice ofintention or the 2005 amended claim, the jurisdictional constraints of the Court of Claims arealso a barrier to the relief requested (seegenerally Czynski v State of New York, 53 AD3d 881, 882-883 [2008], lvdenied 11 NY3d 715 [2009]). We further note that defendant would effectively have tobegin anew its preparation and reopen disclosure, which has been completed and a note of issuefiled, and that the delay in seeking this amendment has been significant and the explanationinadequate. Similarly, the proposed derivative claim seeks to encompass the 20 months of stateprison time, lacks a sufficient explanation for the protracted delay, and implicates furtherdisclosure. Under all these circumstances, we are unpersuaded that the Court of Claims abusedits discretion in denying the motion.
Spain, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs. [See 20 Misc 3d 1125(A), 2008 NY Slip Op 51622(U).]
Footnote *: The notice of intention to file aclaim had been served in February 2001 and a subsequent motion to treat it as a claim wasdenied because it had not been properly verified. Thereafter, the Court of Appeals decided Lepkowski v State of New York (1NY3d 201 [2003]), resulting in the Court of Claims granting claimant's ensuing motion,which it treated as one for renewal, and permitted the notice of intention to be treated as a claimand directed the filing of an amended claim.