New York State Court of Claims

New York State Court of Claims

GROSSMAN v. THE STATE OF NEW YORK, #2000-001-009, Claim No. 99475, Motion No. M-60986


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
David B. Grossman, P.C., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda Wagner, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant's motion for an order of dismissal: Notice of Motion, dated December 28, 1999 and filed January 3, 2000; Affirmation in Support of Belinda A. Wagner, Esq., dated December 28, 1999 and filed January 3, 2000, with annexed Exhibits A and B; Affidavit in Opposition of David B. Grossman, sworn to January 22, 2000 and filed January 25, 2000, with annexed Exhibits A-F; the claim, dated September 11, 1997 and filed December 10, 1998; and the Verified Answer, dated January 15, 1999 and filed January 20, 1999.

Claimant David B. Grossman ("claimant") was employed by the New York State Police ("State Police") from January 24, 1974 until April 29, 1987, when he was placed on involuntary disability retirement, apparently because Dr. John J. A. Lyons, the State Police's in-house physician, determined that he had a ruptured lumbar disc and would not be able to carry out required work activities. In September 1996, claimant underwent an MRI examination of his lower back, which disclosed no evidence of a ruptured or herniated disc or any other abnormality. According to claimant, this surprising MRI result prompted him to realize that the State Police had invented a phony medical excuse to railroad him into retirement in retaliation for his refusal to cooperate in a cover-up during an investigation of high-ranking State Police officers (Affidavit in Opposition of David B. Grossman, sworn to January 22, 2000 and filed January 25, 2000, with annexed Exhibits A-F ["Grossman Aff."]).

Shortly afterwards, claimant served a notice of intention alleging negligence (failure to review medical evidence properly; carelessness and negligence in investigating claimant's medical condition); intentional tort/fraud (submitting false information regarding claimant's medical condition); and breach of contract (termination of employment without cause; breach of contract between the Supervisors' Unit of the New York State Police and the State of New York) on the part of defendant State of New York ("defendant" or "the State"). The subsequently filed claim repeats these causes of action and also alleges violation of certain statutes and rules (New York Labor Law § 740 [2]; Article 11 of the State Police rules and regulations). Claimant seeks reinstatement as a member of the State Police and restoration of all lost retirement credit; restoration of seniority credit for the position of Zone Sergeant; restoration of all sick, vacation and personal leave credits; promotional advancement; payment of the difference between the disability pension he received and the salary for the position of Zone Sergeant at the time of his retirement; and reimbursement for medical expenses and medical insurance.

Claimant posits that he sustained his injuries and thus the claim arose on April 29, 1987, the date of his involuntary disability retirement, but that the "date of the discovery of the claim" was September 18, 1996, when he learned of the normal MRI result. Claimant served the notice of intention (captioned "Notice of Claim") on the Attorney-General on December 16, 1996;[1] he served the claim on the Attorney-General and filed it with the Court on December 7 and 10, 1998 respectively.

The State's Motion to Dismiss

In its answer, the State raised as one of several affirmative defenses relating to the timeliness of the claim "[t]hat this Court lacks jurisdiction over the claim because although a notice of intention to file a claim was served, the claim was not served within two (2) years after the accrual of the claim, as required by Section 10 of the Court of Claims Act" (see, Verified Answer, dated January 15, 1999 and filed January 20, 1999, ¶ Eleventh). This language sets forth the affirmative defense with sufficient particularity to satisfy the requirement of Court of Claims Act § 11 (c), as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of New York, 152 Misc 2d 837); and the State has now moved to dismiss the claim as untimely.

Solely for purposes of this motion, counsel for defendant does not challenge the claimed "discovery accrual" date of September 18, 1996, although she reserves her right to do so should the action continue (Affirmation in Support of Belinda A. Wagner, dated December 28, 1999 and filed January 3, 2000, with annexed Exhibits A and B ["Wagner Aff."], ¶ 5). Instead, counsel maintains that even if September 18, 1996 were the proper date of accrual, the claim would still be untimely because it was not filed and served until more than two years later.

Court of Claims Act §§ 10 (3) and 10 (3-b) require that, with respect to claims based on allegations of negligence and intentional tort respectively, either a claim must be filed and served or a notice of intention must be served within ninety days of the date on which the claim arose. If a notice of intention is employed, the litigant must then file and serve the claim "within two years after the accrual of such claim." Section 10 (4), which governs claims for breach of contract, contains similar provisions, but sets a six-month time period for filing and serving a claim or serving a notice of intention. Again, if a notice of intention is employed, the claim must then be filed and served "within two years after such accrual." The claim in this action was filed and served in December 1998, almost two years and three months after the latest hypothesized date of accrual, September 18, 1996, and is thus untimely.

Claimant's Application to Have the Notice of Intention Deemed the Claim

Section 10 (8) of the Court of Claims Act allows a claimant who timely serves and files[2] a notice of intention to apply to the court to treat the notice as a claim. The Court cannot grant the application, however, unless the notice of intention "contains facts sufficient to constitute a claim," and the application is made before an action asserting a like cause of action against a citizen of the state would be barred by the applicable Statute of Limitations in the CPLR. Here, claimant's opposition papers essentially cross move pursuant to section 10 (8) to have the notice of intention deemed a claim for fraud.

Inconsistencies between Court of Claims Act § 10 (8) and other portions of section 10 have caused some of the Court's judges to conclude that chapter 466 of the Laws of 1995 (see, n 1, supra) impliedly repealed section 10 (8) (see, Konviser v State of New York, 180 Misc 2d 174; Brill v State of New York, Ct Cl, filed March 27, 2000, Bell, J., Claim No. None, Motion No. M-60994). Other judges reason otherwise (see, Fox v State of New York, Ct Cl, filed June 7, 1999, King, J., Claim No. 99171, Motion No. M-58800, Cross-Motion No. CM -58963; Muller v State of New York, Ct Cl, filed May 5, 2000, O'Rourke, J., Claim No. None, Motion No. M-60862); however, claimant's notice does not qualify for treatment as a claim for fraud even if section 10 (8) abides.

"The essential elements of a cause of action for fraud are (1) the defendant's misrepresentation or concealment of a material fact, (2) that such representation was false and known to be false, (3) the defendant's intention to deceive and induce the plaintiff to act upon such representation, (4) the plaintiff's reliance upon the representation, and (5) damages " (Jeffrey BB. v McCloskey, 257 AD2d 21, 23, [citations omitted]). An action based upon fraud must be commenced within six years from the time of the fraud or within two years from the time the fraud was, or with reasonable diligence could have been, discovered (CPLR 213 [8]), whichever is longer (CPLR 203 [g]).

If the purported fraud could not have been discovered prior to September 18, 1996, when claimant asserts that he became aware of it, then the notice of intention served on December 16, 1996 was timely pursuant to Court of Claims Act § 10 (3-b) (time limitation for intentional torts) and CPLR 213 (8) and CPLR 203 (g) (time limitation for fraud). The question of whether and when a reasonably diligent claimant would have discovered an alleged fraud presents a mixed question of law and fact and turns upon " ‘whether the plaintiff possessed knowledge of facts from which he [or she] could reasonably have inferred the fraud' " (K & E Trading & Shipping v Radmar Trading Corp., 174 AD 2d 346, 347, quoting Schmidt v McKay, 555 F2d 30, 37; see also, Jeffrey BB. v McCloskey, 257 AD2d 21, 25, supra).

Claimant alleges that he was notified by Dr. Lyons on July 25, 1986 [3] that he had suffered a herniated disc and was unlikely to return to "full and strenuous duty" without corrective surgery (Grossman. Aff., ¶5), an opinion that Dr. Lyons purportedly based, at least in part, on Dr. Seymour Einhorn's medical evaluation of claimant. Claimant further asserts that Dr. Lyons misrepresented Dr. Einhorn's medical evaluation of him in order to support a faulty medical opinion, and that Dr. Lyons' error in this regard must have been deliberate and intended to deceive rather than grossly negligent because "another State physician, Dr. Noah

Finkle [sic] . . . . reviewed the same report from Dr. Einhorn and concluded that no surgery was indicated" (id., ¶ 14-a).[4]

Claimant never suggests that he relied on Dr. Lyons' alleged misrepresentation to his detriment, an essential element for a cause of action for fraud. Instead, claimant theorizes that the State Police manufactured and relied upon the alleged misrepresentation as a pretext to oust him from his job in retaliation for his refusal to cover up internal wrongdoing (id., ¶¶ 14-a and 14-b).

Furthermore, claimant never states that he was unaware of Dr. Einhorn's medical opinion. Indeed, Dr. Finkel, whose letter claimant cites and includes in his papers, seems to have acquired his knowledge of Dr. Einhorn's medical opinion directly from claimant, not from his review of a report from Dr. Einhorn, as claimant contends (id., ¶ 14-a): in his letter dated January 23, 1987, Dr. Finkel observed that "[s]ince x-rays and records were not available to me and I only had the history as told by the patient, it was difficult for me to make an evaluation [but] [m]y impression was that of lumbosacral strain (emphasis added)," for which Dr. Finkel prescribed physiotherapy and exercise. Moreover, in the attached copy of his findings, Dr. Finkel recites that "[i]n December of 1985 [claimant] had the acute onset of pain in his left leg. He had an MRI and an EMG which failed to reveal any abnormalities," and "[h]e was seen by Dr. Einhorn who suggested no surgery (emphasis added)," information necessarily related to Dr. Finkel by claimant in light of the doctor's earlier observation that he had depended upon claimant's rendition of his medical history for purposes of diagnosis and treatment because x-rays and medical records were unavailable (Grossman. Aff., Exhibit F).

In short, there was no concealment of the alleged fraud (see, Braitman v Vasile, 249 AD2d 956, lv dismissed 92 NY2d 1026), as claimant was fully informed in 1986 of Dr. Lyons' medical opinion, its basis and its relevance to the disability retirement application filed on his behalf (id., Exhibit B). He apparently also had first-hand knowledge of Dr. Einhorn's medical opinion. In any event, claimant certainly had first-hand knowledge of his own physical condition

and full opportunity to obtain the information necessary to confirm or refute Dr. Lyons' diagnosis and prognosis. He presumably would have taken that step simply out of concern for his own well-being, but in any event he had ample motive to find out whether, in fact, he had a herniated disc and required surgery once he knew Dr. Lyons' medical opinion threatened to cost him a job that he asserts he wanted to keep.

Claimant has the burden of demonstrating that he could not have discovered the fraud--Dr. Lyons' alleged misrepresentation of Dr. Einhorn's medical opinion--at some time within the first six years following July 25, 1986, the date when claimant acknowledges that he became aware of Dr. Lyons' diagnosis and prognosis (Rosen v Morben Props., 223 AD2d 584). He has not attempted to meet that burden and in this specific situation, where the information that he needed to know was the condition of his own body and what doctors were or might have been advising him, his pleas of belated discovery surpass credibility. Again, claimant's own papers undercut his position: in a letter to the State Police dated February 26, 1997, Dr. Paul Teague adverts to an opinion dating from 1986 recommending surgery for claimant; states that claimant was at the time subject to several orthopedic examinations without the benefit of CT scan, MRI scan or myelogram as a result of which he received two opinions; specifically, "[o]ne opinion was to undergo exploratory back surgery to remove a herniated lumbar disc" and "[a]n alternative orthopedic opinion [presumably Dr. Finkel's] advised him not to have surgery but to go through a physical therapy program. Wisely [claimant] chose the latter advice and subsequently resolved all his symptoms without any restrictions or impairment, a status he has appreciated [sic] for the past 10 years plus" (Grossman Aff., Exhibit C [emphasis added]). In

other words, claimant received medical advice in 1986 or early 1987 that he did not have a herniated disc and did not need surgery and followed a regimen of physical therapy premised on this advice; the completely normal MRI result in 1996 was no revelation.

In light of the foregoing, claimant's notice of intention does not qualify for treatment as a claim pursuant to Court of Claims Act § 10 (8), even assuming that provision's continued availability, because it does not "contain[] facts sufficient to constitute a claim" for fraud and was not served until almost ten years after the alleged fraud was or certainly could have been discovered if claimant had exercised reasonable diligence. As the relief he seeks betrays, claimant is in actuality contesting his involuntary disability retirement in the guise of a claim for damages; however, the Court of Claims does not have jurisdiction to grant him the equitable relief he requests, such as reinstatement and restoration of retirement, seniority and other credits (see, Taylor v State of New York, 160 Misc 2d 120); and a successful CPLR article 78 proceeding for reinstatement is a prerequisite to a public employee's recovery of damages on account of job loss (see, Austin v Board of Higher Educ., 5 NY2d 430, 443-444; Clancy v State of New York, 126 Misc 2d 292, 293 ["a breach of contract action for lost wages may not be maintained [in the Court of Claims] since claimant had not obtained reinstatement to her former position via a CPLR article 78 proceeding, a condition precedent to such action against a public employer"]; Adams v New York State Civil Serv. Comm'n, 51 AD2d 668 [a public employee who established wrongful removal from his job in an article 78 proceeding may institute an action at law in the Court of Claims to recover lost salary and compensation];[5] see also, Finley v Giacobbe, 79 F3d 1285, 1291-1293).

Defendant's motion is granted; the claim is dismissed as untimely. Claimant's request made in opposition to the motion, which has been treated as an application to deem the notice of intention a claim, is denied for the reasons stated.

May 8, 2000
Albany, New York

Judge of the Court of Claims

[1]Claimant also attempted to file this document, but the Clerk of the Court returned it along with a letter informing claimant that filing was unnecessary (Grossman Aff., ¶ D): Chapter 466 of the Laws of 1995, effective August 2, 1995, removed the requirement to file a notice of intention with the Court of Claims.
[2]See, n 1, supra.
[3]Claimant alleges that Dr. Lyons notified him directly and provides two different but substantively identical quotations from Dr. Lyons (Grossman Aff., ¶¶ 5 and 14), and also refers to the "medical report of the State Police" (id., ¶ 6); however, the only exhibit claimant provides is a memorandum from William H. Anton, State Police Director of Personnel, to Major Raymond F. Shalvey, Troop Commander, Troop "L", dated July 25, 1986 (Grossman Aff., Exhibit A), which sets forth the author's understanding of Dr. Lyons' findings relative to claimant's medical condition and the basis for those findings; i.e., Dr. Lyons' review of the evaluation of claimant made by Dr. Seymour Einhorn on June 30, 1986 and x-ray findings.
[4]Claimant's affidavit contains two paragraphs numbered 14, the first of which the Court refers to as ¶ 14-a; the second, ¶ 14-b.
[5]These cases predate the Court of Appeals' decision in Matter of Gross v Perales (72 NY2d 231, rearg denied 72 NY2d 1042), which overruled a series of cases precluding recovery against the State of monetary relief incidental to the primary claim in a CPLR article 78 proceeding.