New York State Court of Claims

New York State Court of Claims

KOMLOSI v.THE STATE OF NEW YORK, #2000-001-018, Claim No. 73476, Motion No. M-60761


Synopsis


Claimant's motion for an order vacating a prior order dismissing the claim and restoring it to the Court's calendar is denied.

Case Information

UID:
2000-001-018
Claimant(s):
MARK KOMLOSI
Claimant short name:
KOMLOSI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
73476
Motion number(s):
M-60761
Cross-motion number(s):

Judge:
susan phillips read
Claimant's attorney:
Burchetta, Brofman, Collins and Hanley, LLPBy: Jeremiah J. Sheehan, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 22, 2000
City:
Albany
Comments:

Official citation:

Appellate results:
Affirmed - Third Dept., 11/5/01
See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an order to vacate a prior order dismissing the claim to restore it to the Court's calendar: Notice of Motion, dated November 22, 1999 and filed November 26, 1999; Affirmation in Support of Jeremiah J. Sheehan, Esq., dated October 27, 1999 and filed November 26, 1999; Affidavit of Mark Komlosi, sworn to October 27, 1999 and filed November 26, 1999, with annexed Exhibits A-G; Memorandum of Law in Support of Claimant's Motion, dated October 27, 1999 and received November 26, 1999; Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated February 18, 2000 and filed February 23, 2000, with annexed Exhibits 1-4; Reply Affirmation of J. Peter Collins, Esq., dated February 23, 2000 and filed February 25, 2000; Letter of Grace A. Brannigan, Esq., AAG, dated April 27, 2000 and received May 1, 2000; Reply Letter of J. Peter Collins, Esq., dated May 5, 2000 and received May 10, 2000; and the following Filed Papers: Letter of Mark Komlosi, dated December 12, 1996 and received December 18, 1996; Letter of Mark Komlosi, dated April 18, 1996 and received April 24, 1996; Daily Report of Hon. Albert A. Blinder, dated August 17, 1995 and filed Nov. 16, 1995; Order of Hon. Albert A. Blinder, Motion No. M-45891, dated March 31, 1993 and filed May 5, 1993, with Affirmation of Samuel B. Militello, Esq., and annexed transcript dated January 25, 1990; Daily Report of Hon. Albert A. Blinder, dated January 25, 1990, filed January 29, 1990; Order of Hon. Albert A. Blinder, Motion No. M-37816, dated February 22, 1988 and filed March 7, 1988; Amended Notice of Claim, dated October 1, 1987 and filed October 23, 1987; Memorandum Opinion and Order of Hon. Albert A. Blinder, Motion No. M-36962, Cross-Motion No. CM-37153, dated September 4, 1987 and filed September 17, 1987; and Memorandum Opinion and Order of Hon. Albert A. Blinder, Motion No. M-35834, dated February 4, 1987 and filed February 11, 1987.

This claim arose from a criminal indictment filed against claimant Mark Komlosi ("claimant") in 1985 and ultimately dismissed after trial on May 29, 1986. Claimant was charged with two counts of sodomy in the first degree (Penal Law § 130.50), with the alleged victims being patients of the Williamsburg Residential and Training Center and the Brooklyn Developmental Center, where claimant was employed as a psychologist (Amended Notice of Claim, dated October 1 and filed October 23, 1987 ["Claim"], ¶¶ 4 [g], [j] and [m]). The claim alleges that the indictment and prosecution were brought about by the efforts of employees of the State of New York, including Melanie Fudenberg ("Fudenberg"), who lodged false charges against claimant; testified falsely against him (id., ¶¶ 4[c] & [o]); and coerced one of the alleged victims, David Rosenberg, to accuse claimant falsely and to provide false testimony (id., ¶ [p]). Claimant brought a civil rights action in Federal court (42 USC § 1983) based on essentially the same allegations, Komlosi v New York State Office of Mental Retardation and Developmental Disabilities[1] ("OMRDD") (88 CIV 1792, United States District Court for the Southern District of New York).

Background

In the fall of 1986 when litigation in this Court began,[2] claimant was represented by an attorney, George David Rosenbaum, Esq. In early 1988, Attorney Rosenbaum was permitted to withdraw and the action was stayed for sixty days to permit claimant to obtain replacement counsel (Komlosi v State of New York, Ct Cl, filed March 7, 1988, Blinder, J., Motion No. M-37816). When the case was called for trial two years later, claimant appeared pro se and informed the Court that he wished to proceed first with the related Federal action. The parties then stipulated that the claim could be dismissed but that claimant would be able to move to vacate the order of dismissal, without opposition from the State, within two years from the date of the hearing (Transcript, January 25, 1990, annexed to Order of Hon. Albert A. Blinder, Motion No. M45891, dated March 31 and filed May 5, 1993). The claim was then dismissed "pursuant to 206.15"[3] (Daily Report, dated January 25 and filed January 29, 1990 [Blinder, J.]).

Another three years[4] elapsed before claimant, now represented by Samuel B. Militello, Esq., moved to vacate the 1990 dismissal. The motion was granted, largely because the defendant would not be prejudiced because of the ongoing Federal action (Komlosi v State of New York, Ct Cl, filed May 5, 1993, Blinder, J., Motion No. M-45891).

Two years later on the day that the claim was scheduled for a preliminary conference, Attorney Militello sent the Court a letter requesting an adjournment. Because this letter did not comply with the rules for seeking an adjournment by reason of engagement of counsel (22 NYCRR § 125.1), the claim was once again dismissed, this time pursuant to Rule 206.10 (failure to appear at a preliminary conference) and Rule 206.15 (see, n 1, supra) (Daily Report of Hon. Albert A. Blinder, dated August 17 and filed Nov. 16, 1995). Judge Blinder further directed that any motion to vacate this second order of dismissal should be supported by an affidavit of merit (id.). No formal steps were taken to revive the action until four years later, when this motion was filed in November 1999.

Considerably more activity took place in the Federal action. Following a number of preliminary motions and decisions, by September 1995 the only defendant remaining in that action was State employee Fudenberg (see, Komlosi v OMRDD, 64 F3d 810, 812 n 1, 818). During the years between 1990 and 1995, claimant was represented by at least three different law firms;[5] however, in December 1998 claimant moved for the appointment of counsel in Federal court, which was denied because of "very serious issues concerning what efforts, if any, plaintiff has made to retain counsel and plaintiff's ability to retain counsel on his own" (Komlosi v OMRDD, 1998 WL 830524 [SDNY Dec. 1, 1998] [Pitman, Magistrate]). Later that same month, claimant retained his current counsel, the firm of Burchetta, Collins & Hanley, LLP (Affidavit of Mark Komlosi, dated October 27 and filed November 26, 1999 ["Komlosi Aff."], ¶ 22).

This firm represented claimant at the trial of the Federal action. At the trial's conclusion, the jury determined that Fudenberg, while acting under color of State law, had violated claimant's right to follow his career choice and to be free of malicious prosecution (Komlosi Aff., Exhibit G: Verdict Form, Komlosi v Fudenberg, ["Verdict Form"], ¶ 2 [b], [c]). The jury awarded a total of $6,600,000 in compensatory damages and $10,000,000 in punitive damages (Verdict Form, ¶¶ 5, 7), but those amounts were reduced to $1,872,988 and $500,000, respectively, on a post-trial motion (Komlosi v Fudenberg, 2000 WL 351414 [SDNY March 31, 2000] [Pitman, Magistrate], adhered to on reconsideration 2000 WL 554226 [SDNY May 4, 2000] [Pitman, Magistrate]).

Claimant now moves to vacate the August 1995 dismissal of the action in this court, contending that his submissions establish 1) a meritorious cause of action; 2) a reasonable excuse for delay; 3) a lack of prejudice to defendant State of New York ("defendant"or "the State"); and 4) lack of intention to abandon the claim. Defendant opposes the motion, asserting that claimant does not have an acceptable excuse for his delay in moving to vacate the dismissal and that, as a result of the Federal trial and verdict, this claim is barred because claimant has already been compensated for the wrong that he now seeks to litigate in this Court (Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated February 18 and filed February 23, 2000).

Applicable Law and Discussion

Claimant's papers state that this motion is being brought pursuant to Court of Claims Act § 19 and Rule 206.15 of the Uniform Rules for the Court of Claims (Notice of Motion, dated November 22, 1999 and filed November 26, 1999). Section 19 of the Court of Claims Act deals primarily with limitations on when interest shall accrue on claims against the State, but it also contains, in subdivision (3), the following statement: "Claims may be dismissed for failure to appear or prosecute or be restored to the calendar for good cause shown, in the discretion of the court." As indicated above (see, n 1, supra), Rule 206.15 provides that an order dismissing a claim for calendar default "shall not be vacated except on stipulation of all parties so ordered by the court or by motion on notice to all parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored."

Neither claimant nor defendant has referred to CPLR 5015, which sets forth the general power and procedures relevant to motions for relief from a prior order or judgment. Neither Court of Claims Act § 19 nor Rule 206.15 is inconsistent with the provisions of CPLR 5015 and thus, through operation of Court of Claims Act § 9 (9), the CPLR provision governs motions to vacate prior orders or judgments of this court (see, e.g., Welch v State of New York, 261 AD2d 537; Amodeo v State of New York, 257 AD2d 748).

Pursuant to that statute, a party may be relieved of a prior judgment or order on the ground of "excusable default" only if a motion for this relief is made within one year after the party was served with the order or judgment (CPLR 5015 [a] [1]). That was certainly not done here.

Courts have held that, in some circumstances, they have an inherent power to vacate a judgment "in the interest of justice" even after the one-year period has expired (see, e.g., Molesky v Molesky, 255 AD2d 821). Nonetheless, the moving party still must have a reasonable excuse for the default and a meritorious cause of action (id.; Blumberg v State of New York, 208 AD2d 581). In addition, courts are to inquire into the reasons for any delay in moving to vacate the default (City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991).

The default that led to the 1995 dismissal of claimant's action--counsel's failure to appear at a scheduled preliminary conference--was caused exclusively by the actions of claimant's counsel at the time and occurred without claimant's knowledge. Consequently, the default itself could be excused; however, claimant has failed to set forth any reasonable explanation for his delay in seeking vacatur of the order. Very soon after the default, claimant was fully aware that it had occurred and, in addition, he was given explicit directions about the steps to follow to have the action restored (see, Komlosi Aff., Exhibit B).

The Court is unpersuaded by claimant's argument that he was unable to take these steps because of difficulties encountered in locating an attorney to represent him. Litigants who are unable, or even simply unwilling, to secure the services of an attorney have the right and the obligation to represent themselves (CPLR 321), and while courts attempt to be helpful and patient with the non-lawyers appearing before them, pro se litigants are not excused from time limitations, service requirements or the other steps required by law to prosecute an action. Moreover, the steps outlined to claimant in April 1996 were neither onerous nor complex, and he easily could have had this action restored in a timely manner. Finally, claimant was not without the power and ability to obtain legal representation, as shown by the number of attorneys he managed to retain to represent him in the Federal action (see, n 5, supra), and claimant has provided no reasonable explanation for the additional year of delay after he retained his current counsel in December 1998.

Next, the only potentially viable cause of action in the Court of Claims is malicious prosecution (see, n 2, supra) and Fudenberg is the only State employee identified by claimant as contributing to the prosecution against him; however, claimant has already successfully prosecuted a Federal action against Fudenberg. Thus, the identical facts and legal issues have been fully and fairly litigated by the claimant (Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276, cert denied 488 US 1005).

In addition, the jury's award reflects full damages (Verdict Form, Question 5). Despite the vague assertion that claimant "may be able to demonstrate additional compensable damages not covered by the prior jury verdict" (Reply Affirmation of J. Peter Collins, Esq., dated February 23 and filed February 25, 2000 ["Reply Aff."], ¶ 9), this Court could not set a higher amount of total damages because claimant was an active participant in the Federal action and fully litigated the issue of damages (O'Connor v State of New York, 126 AD2d 120, 125, affd 70 NY2d 914; see also, Amodeo v State of New York, 257 AD2d 748, 749, supra; Carter v State of New York, 154 AD2d 642). That the jury award has not yet been paid out as a result of intervening motions and a proposed appeal (Reply Aff., ¶ 5) does not suggest a different result.

Based on the foregoing, the Court denies claimant's motion.


June 22, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
In later proceedings, this action was captioned Komlosi v Fudenberg.
[2]
In August 1986, claimant simultaneously filed a claim and brought a motion for permission to file a late claim (Court of Claims Act § 10 [6]). Seven causes of action were alleged in both the claim and the proposed claim: malicious prosecution, wrongful discharge, negligent hiring, negligent retention, slander, negligent investigation and various constitutional violations. The cause of action for malicious prosecution was determined to be timely, and permission to assert any of the other causes of action was denied (Memorandum Opinion and Order of Hon. Albert A. Blinder, Motion No. M-35834, dated February 4 and filed February 11, 1987). In response to a subsequent motion for dismissal, claimant was directed to file an amended claim that set forth only the cause of action for malicious prosecution (Memorandum Opinion and Order of Hon. Albert A. Blinder, Motion No. M-36962, Cross-Motion No. CM-37153, dated September 4 and filed September 17, 1987). That amended claim was filed in October 1987.
[3]
Rule 206.15 of the Uniform Rules for the Court of Claims (22 NYCRR § 206.15) provides that a claim may be dismissed when it has appeared on the general calendar and the defendant is ready to proceed but the claimant is not ready or fails to appear. Such an order of dismissal may not be vacated except upon stipulation of all parties, so ordered by the court, or on motion, supported by an affidavit showing sufficient reason why the order should be vacated and the claim restored.
[4]
Motion papers were served on the Attorney-General on January 15, 1992, within the two-year time period, but the copy intended for the Court of Claims was filed at the wrong office (Affirmation of Samuel B. Militello, Esq., ¶ 8, annexed to Order of Hon. Albert A. Blinder, Motion No. M-45891, dated March 31 and filed May 5, 1993.)
[5]
Komlosi v OMRDD, 1990 WL 29352 (SDNY March 12, 1990 [Keenan, J.]), law firm of Goner, Goner, Crinoids & Lublin; Komlosi v OMRDD, 1994 WL 465993 (SDNY August 23, 1994 [Keenan, J.]), law firm of Spent, Goldman, Goldberg, Steinhardt & Penn; Komlosi v OMRDD, 64 F3d 810 (2d Cir. Sept. 7, 1995), law firm of Balloon, Stol, Worse & Nader, P.C.