New York State Court of Claims

New York State Court of Claims

REYES v. THE STATE OF NEW YORK, #2000-001-034, Claim No. 97476, Motion No. M-61334


Claimant's motion for an order restoring the claim is denied

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):

Claimant's attorney:
Jose Reyes, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: James E. Shoemaker, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion for an order restoring the claim: Notice of Motion, dated March 1 and filed March 9, 2000, with annexed Exhibits A-I; Affidavit of Jose Reyes, pro se, undated and filed March 9, 2000; letter response of James E. Shoemaker, Esq., AAG, dated April 6 and received April 10, 2000; Filed papers: Letter, claimant to Court of Claims, dated December 23 and received December 27, 1999; Letter, claimant to Court of Claims, dated November 17 and received November 19, 1999; Letter, Chief Clerk to claimant, dated August 17, 1999; Letter, claimant to Chief Clerk, dated July 23 and received July 28, 1999; Letter, claimant to C. Scott Bowen, Assistant Attorney General, dated June 29 and filed July 2, 1998; and the claim, sworn to December 3, and filed December 10, 1997.

Claimant Jose Reyes ("claimant"), appearing pro se, commenced this personal injury action arising from an alleged inmate assault at Southport Correctional Facility by filing and serving the claim in December 1997. In June 1998, claimant wrote to the Assistant Attorney General then handling the case, with a copy to the Court, stating that he was finished with discovery and ready for trial (Letter, claimant to C. Scott Bowen, Assistant Attorney General, dated June 29 and filed July 2, 1998).

Shortly thereafter, however, claimant wrote to the Chief Clerk of this Court to ask the following question: "If a claimant presently is litigating a lawsuit in the Court of Claims and he desire (sic) to withdraw his claim to [be] re-litigated in the Federal Court, ‘can a claimant do that'?" (Letter, claimant to Chief Clerk, dated July 23 and received July 28, 1999). This letter does not refer to any particular claim number, but it was placed in the file of Claim No. 97476, and that claim number was noted on the Chief Clerk's response. Claimant was told that if he wished to do so, he could write to the Court, mentioning the claim number and stating his intention to withdraw the action (Letter, Chief Clerk to claimant, dated August 17, 1999).

Three months elapsed and then, on November 19, 1999, the Court received a letter from claimant. This letter referred to Claim No. 97476 above the body of the text and stated the following: "PLEASE TAKE NOTICE, the claimant on the above-mentioned matter wish [sic] to withdraw the above claim No. 97476" (Letter, claimant to Court of Claims, dated November 17 and received November 19, 1999). In response to that request, and with knowledge that defendant State of New York ("defendant" or "the State") would have no objection to the requested relief being granted, Claim No. 97476 was closed by a Daily Report signed by the Court on December 8, 1999.

Within weeks, claimant wrote back to request that the claim be restored, stating that he had "made a ‘mistake' and put the WRONG claim no." and that he did not wish to withdraw Claim No. 97476 (Letter, claimant to Court of Claims, dated December 23 and received December 27, 1999). By this motion, claimant seeks the same relief, stating that he "made a harmless error and put the wrong claim no." on his November 19th letter (Affidavit of Jose Reyes, pro se, undated and filed March 9, 2000 ["Reyes Aff."], ¶ 17). At no time has claimant identified the "other" claim that he supposedly intended to discontinue. A review of the Court's records reveals several claims brought by this litigant (Claims No. 090322, 091265, 093586, 094628, 094629, 098903), but none of them has ever been withdrawn, either before or after claimant's November 1999 request.

The party asserting a claim may voluntarily discontinue it in accordance with the provisions of CPLR 3217, and the discontinuance does not ordinarily constitute adjudication on the merits (see, CPLR 3217 (c); Herder v Clifford, 252 NY 141; Matter of Phyllis W. v Bernie X., 203 AD2d 694; see also Phillips v Sun Oil Co., 282 App Div 947).[1] A litigant complying with the requirements of CPLR 3217 (a) (1), (2) or (3) has an absolute and unconditional right to discontinue. Subdivision (a) (1) allows a party asserting a claim to discontinue unilaterally on mere notice to the other parties and filing with the court at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier; and subdivision (a) (2) permits discontinuance upon a stipulation signed by the attorneys for all parties and filed with the appropriate court as long as there is no interested infant, incapacitated person or non-party and the case has not been submitted to a court or jury.[2] A court may have grounds to invoke equitable jurisdiction to vacate a notice in instances of egregious, devious or unfair conduct (Battaglia v Battaglia, 59 NY2d 778, reversing on dissenting mem at 90 AD2d 930, 933; Giambrone v Giambrone, 140 AD2d 206, 207; Chandler v Chandler, 108 AD2d 1035), or may vacate a stipulation shown not to reflect the parties' intentions accurately or to be somehow mistaken (Matter of Horton, 51 AD2d 856; Phoenix Assur. Co. v Stark Mobile Homes, 39 AD2d 514).

Where the requirements of subdivision (a) are not met, discontinuance requires an order of the court pursuant to CPLR 3217 (b). Permission may be denied if the adversary's rights would be prejudiced or if substantial rights have accrued (see, e.g., Giambrone v Giambrone, 140 AD2d 206, supra; Schneider v Schneider, 32 AD2d 630), and the court may exercise its discretion to impose any terms and conditions--such as requiring payment of the opposing party's costs or making the discontinuance "with prejudice"--that it deems proper (Conte v Getty Petroleum Corp., 202 AD2d 621; Piazza Bros. v Pound Ridge Bd. of Fire Commrs., 230 AD2d 837). Absent special circumstances, however, a court should grant a request for a discontinuance (Tucker v Tucker, 55 NY2d 378).

The Court found no reported cases in which the party who successfully sought a court-ordered discontinuance subsequently asked the Court to vacate the order and have the claim restored. More typically, one of the parties to a stipulation to discontinue has attempted to have the claim restored, usually asserting that the stipulation does not accurately represent the intention of the parties (Matter of Horton, 51 AD2d 856, supra) or some mistake has occurred (Phoenix Assur. Co. v Stark Mobile Homes, 39 AD2d 514, supra). Some confusion and disagreement exist about whether relief can be obtained through a motion in the discontinued action or must be sought in a separate plenary action (see, Teitelbaum Holdings v Gold, 48 NY2d 51, limiting Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435; Matter of Longwood Assoc. v Board of Assessors of County of Nassau, 58 AD2d 581). The weight of recent authority supports use of the more accessible motion whenever possible (Teitelbaum Holdings v Gold, 48 NY2d 51, supra, at 55; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, C3217:10, at 730), and a motion to vacate brought within the original action seems both practical and preferred here.

Next, although the claim was discontinued by court order, the situation presented here seems more analogous to discontinuance by stipulation of the parties pursuant to CPLR 3217 (a) (2): if claimant were more versed in the statutory requirements or if both the Court and defendant were more rigid in their expectations of pro se claimants, this action would have been discontinued without court order. There is simply no reason to doubt that the State would have agreed to sign a stipulation to discontinue as provided for under CPLR 3217 (a) (2). If that step had been taken, the claimant would have to provide some proof, including a full and believable explanation, that the parties' intentions were not fulfilled or some mistake had been made. Here, claimant undoubtedly intended, at least at one point, to abandon this claim and the excuse he now provides for his supposed misstep--that he confused this claim number with that of another claim that he, in fact, did wish to discontinue--is difficult to credit. Claimant does not explain how this confusion came about; he does not identify the other claim and explain why he sought its discontinuance; and he has, in fact, made no effort to discontinue or otherwise abandon any of his other claims. In effect, claimant is doing little more than saying, "I changed my mind." The Court is not willing to place its calendar at the mercy of such capricious and generally unexplained behavior.

Because prison inmates are not attorneys and because it is difficult for them to obtain the services of attorneys in many cases, neither the Court nor the State typically requires the same degree of formality as might be expected of other litigants. In the situation presented here, another claimant, particularly one represented by an attorney, would certainly have been required either to draft a stipulation of discontinuance and communicate with defendant to obtain defense counsel's signature in order to discontinue under CPLR 3217 (a) (2), or to bring a formal motion seeking the Court's permission to discontinue under CPLR 3217 (b), with the attendant risk of Court-ordered terms and conditions. All any prison pro se claimant has to do to discontinue an action in this Court, however, is to make the simple written request and allow the Court to take care of the other details. Such practical flexibility in this and other aspects of Court of Claims practice works to the advantage of all, most especially the unrepresented inmate. This is not to say that the relief sought here would never be granted, but because in normal fashion this would have been either a discontinuance without court order under 3217 (a) (2) or a court-ordered discontinuance granted after a formal motion and quite possibly with the restriction that it was to be "with prejudice," a claimant seeking to restore a claim that he asked to have discontinued must come forward with a considerably more detailed and believable explanation than has been presented here.

Claimant's motion is denied.

June 29, 2000
Albany, New York

Judge of the Court of Claims

Voluntary discontinuances do not, however, entitle the party to the benefits of CPLR 205, which provides a six-month period in which a new action can be commenced after an earlier one is terminated. Other types of terminations expressly excluded by that statute are decisions on the merits and dismissals for lack of jurisdiction or failure to prosecute.
Discontinuance pursuant to subdivision 3217 (a) (3) relates only to certain real property actions.