New York State Court of Claims

New York State Court of Claims

DAME v. THE STATE OF NEW YORK, #2000-009-446, Claim No. 99567, Motion No. M-62051


Defendant's motion for summary judgment dismissing the claim granted under the doctrine of res judicata.

Case Information

RICHARD DAME, Individually and d/b/a Precision Roofing Company
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):

Nicholas V. Midey, Jr.
Claimant's attorney:
BY: Martin Michaels, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

This claim seeks damages against the State based upon causes of action for defamation and malicious prosecution, arising out of incidents first occurring in September, 1998. On September 7, 1998, a severe storm struck the central New York area and caused extensive damage to homes and businesses throughout the area. Utility services were disrupted by this storm, leaving thousands of residents without service for several days. Many homes suffered damage to their roofs, caused by the high winds generated by the storm, as well as by fallen trees and tree limbs. The owners of these homes had to immediately hire contractors to make repairs to their roofs in order to prevent further destruction and to protect the interiors of their homes. Claimant was one of the contractors in the area who entered into contracts to perform repair work in the aftermath of this storm.

Subsequently, the New York State Attorney General's office undertook a consumer fraud investigation in response to complaints of price-gouging by these contractors, including claimant in this investigation. During the course of this investigation, claimant was identified by representatives of the Attorney General's office during press conferences and television interviews as a contractor who was being investigated for price-gouging.

On December 30, 1998, claimant commenced the within action, alleging that representatives from the Attorney General's office had harassed and maliciously prosecuted him, and had publicized both in the press and on television that claimant had overcharged customers. Claimant further alleged that this conduct maligned claimant's reputation and restricted his ability to do roofing repair work in the central New York area.

As a result of the investigation into alleged price-gouging, on or about October 21, 1998, the Attorney General commenced a special proceeding against claimant in Supreme Court, Onondaga County[1]. A fact finding hearing in this special proceeding was held on or about October 26 and 27, 1999, by the Hon. Thomas J. Murphy, Justice of the Supreme Court. Claimant was represented at this hearing. The decision following this fact finding hearing was rendered on or about April 3, 2000, and an Order and Judgment was entered in the office of the Clerk of County of Onondaga on July 13, 2000. In the Order and Judgment, a permanent injunction was issued against claimant, he was ordered to pay restitution to certain customers, and he was directed to pay certain civil penalties and costs.

Based upon the findings made in this special proceeding, defendant now seeks to dismiss the within claim.

It is clear to this Court that the findings made in the special proceeding commenced against claimant should be given res judicata effect by this Court. Claimant had a full and fair opportunity to present evidence during the special proceeding, and the decision made therein was one made on the merits. Having accepted the findings made in the special proceeding, it is equally clear that claimant cannot, as a matter of law, sustain his burden of proof in the within claim.

It should be noted that claimant has not submitted any papers in opposition to this motion.

Accordingly, it is

ORDERED, that Motion No. M-62051 is hereby GRANTED; and it is further

ORDERED, that Claim No. 99567 is hereby DISMISSED.

November 30, 2000
Syracuse, New York

Judge of the Court of Claims

[1] This special proceeding was captioned THE PEOPLE OF THE STATE OF NEW YORK by DENNIS C. VACCO, Attorney General of the State of New York, Petitioner, against RICHARD DAME, Individually and d/b/a Precision Roofing Company, Respondent. This special proceeding was given index number 98-6276, RJI No. 33-98-1820.