New York State Court of Claims

New York State Court of Claims

SLATE v. THE STATE OF NEW YORK, #2000-015-086, Claim No. 96573, Motion Nos. M-61981, M-61982


Court denied summary judgment motion by claimant, an attorney who represented a State employee under Public Officers Law § 17 on grounds that argument raised had already been determined against claimant in prior summary judgment motion.

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):
M-61981, M-61982
Cross-motion number(s):

Claimant's attorney:
Jerold S. Slate, Esquire, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2000
Saratoga Springs

Official citation:

Appellate results:
affd 3d Dept. 6/21/01
See also (multicaptioned case)


The motion of the claimant for an order pursuant to CPLR 3212 (a) permitting the filing of a motion for summary judgment more than 120 days after claimant filed his note of issue is denied. The motion of the claimant for an order granting him summary judgment as to liability and damages, and dismissing the affirmative defense and counterclaim for lack of merit is denied. This claim alleges that on August 11, 1995 the Attorney General certified that Correction Officer Kirk Montgomery was entitled to be represented by private counsel in the case of Brooks v Montgomery, et al, 95 CV 542, then pending in the United States District Court for the Northern District of New York. The Attorney General's determination was made pursuant to section 17 of the Public Officers Law which provides for indemnification and the payment of defense costs for State employees under certain circumstances. If the Attorney General determines that representation of the State employee by his or her office would be inappropriate, a private attorney may be hired and his fees paid by the State. The Comptroller has established a fee schedule for attorneys pursuant to Public Officers Law § 17 and makes the initial determination of the reasonableness of the fees requested. Public Officers Law § 17 (2)(b) provides in pertinent part that "any dispute with respect to . . . the reasonableness of attorneys' fees shall be resolved by the Court on motion or by way of a special proceeding".

Claimant alleges that Mr. Montgomery retained him as counsel on the Federal case and that he submitted monthly vouchers to the Comptroller for legal services and expenses incurred from October of 1995 to October of 1996. The Comptroller approved payment of those vouchers, but thereafter refused to pay vouchers submitted for the months of November 1996 through March 1997. The underlying Federal lawsuits settled in February 1997 and the settlement was so ordered by U.S. Magistrate Ralph W. Smith on March 31, 1997. On April 23, 1997, the Comptroller sent claimant written notice that no further payments would be made for legal services rendered to Mr. Montgomery. A notice of intention to file the claim was served upon the Attorney General on June 16, 1997 and a claim was filed on July 11, 1997. Claimant seeks $65,140.89 in damages. The record discloses that as of April 1997 the State had already paid claimant $211,045.44.

Prior to the service of an answer, the State moved to dismiss the claim upon the grounds that

the Court of Claims lacked subject matter jurisdiction; the Comptroller acted in a quasi-judicial capacity in using his audit power and as such is afforded absolute immunity from liability; and that the claim cannot be heard by this Court as it was not brought on by motion or special proceeding as required by Public Officers Law § 17 (2)(b). In a decision and order filed on November 3, 1997, the dismissal motion was denied upon a holding that the Court of Claims has subject matter jurisdiction of a cause of action to recover counsel fees allegedly owed pursuant to Public Officers Law § 17 and that the Comptroller's determination as to the reasonableness of the requested attorney's fees enjoys no immunity from Court review. Thereafter, the defendant served an amended answer alleging as a second affirmative defense that the claimant had been paid an amount in excess of that which was fair and reasonable compensation for his services. The amended answer also contained a counterclaim seeking to recover the overpayment. In its bill of particulars, defendant has placed the amount of damages sought in the counterclaim at $80,000.00.

By the present motions, claimant seeks permission to make a motion for summary judgment more than 120 days after the filing of the trial term note of issue and certificate of readiness, and in the event that the motion is granted, requests summary judgment upon the liability and damages issues and dismissal of the affirmative defenses and counterclaim. Claimant's position with regard to the counterclaim is that when the Comptroller audited and paid the first fifteen monthly vouchers submitted by claimant he was acting in a quasi-judicial capacity and his determinations resulting therefrom are beyond the review of this Court. At paragraph 70 of his affirmation dated July 6, 2000, claimant makes the following statement in support of the summary judgment motion:
Claimant has found no judicial precedent permitting an action to recoup legal fees paid pursuant to P.O.L. § 17 and no judicial precedent permitting the recoupment of legal fees paid pursuant to P.O.L. § 17 after lawful audit and authorized payment where those fees were legally paid under the aforesaid four factors.
In fact, by a decision and order filed on July 27, 1998, this Court previously addressed the issue of recoupment of legal fees paid pursuant to Public Officers Law § 17 after lawful audit and authorized payment in response to a previous motion brought on by the claimant in this very matter.

The opening paragraph of that decision and order frames the issues that were before the Court as follows:
The claimant moves for an order dismissing the second defense set forth in the amended answer for failing to state a cause of action and for lack of merit. Claimant also seeks to dismiss the counterclaim in the amended answer based upon documentary evidence and for failure to state a cause of action on the basis that the defendant is estopped from contesting the reasonableness of compensation paid to claimant for prior legal services as the Comptroller has already performed an audit of those payments.
In denying the claimant's motion, this Court stated:
The Court also rejects the contention that a viable defense and counterclaim are not stated in the amended answer. As to the second defense, "the Comptroller has the right to offset any valid claim of the State against one to whom money under his control is due" (Matter of Mutuel Tickets Agents Union, Local 23293, AFL-CIO, Inc. v McCall, 210 AD2d 845, 846). The Comptroller's recoupment and offset authority is derived from the statutory and constitutional duty of the Comptroller to audit vouchers (Matter of Smith v Hudacs, 158 Misc 2d 149). When the Comptroller has already audited vouchers and subsequently discovers an overbilling he or she may seek to recover the amount that was overbilled either by way of a counterclaim in the Court of Claims or an action commenced in Supreme Court (Matter of Murphy P.C. v State of New York, 157 AD2d 155).[1] The State can seek to affirmatively recover the full amount of the overbilling by way of a counterclaim or elect to set up the recoupment as a defense up to the amount sought by the claimant (Constantino v State of New York, 99 Misc 2d 362, 365). CPLR 3014 [sic] permits the State to assert its right to recover the alleged overbilling alternatively as a defense and a counterclaim. The defendant has chosen to exercise that pleading option. Consideration of the foregoing principles of law as applied to the motion record leads the Court to conclude that the defendant possesses a potentially meritorious defense and counterclaim for the alleged overbilling which it has sufficiently pleaded.[2]

The claimant's primary contention is that the defendant should be estopped from asserting the second defense and counterclaim based on an audit and payment of vouchers submitted between October of 1995 and October of 1996. "It is well settled that estoppel is generally not available against the State when it acts in a governmental capacity ... although an exception to the general rule exists in ‘unusual factual situations' to prevent injustice" (Matter of Schwartz v Crosson, 165 AD2d 147, 149). A determination made by the Comptroller in the exercise of his audit power is a quasi-judicial determination (Matter of Smith v Hudacs, 158 Misc 2d 149, supra, at 150, 151). Since the Comptroller acted in his governmental capacity in reviewing the submitted vouchers and in now determining that an overbilling occurred, a court can only impose an estoppel against him in an unusual factual situation in order to prevent an injustice. In Matter of Schwartz, supra, the Court found that the working of an injustice to a particular litigant was not so highly unusual as to invoke the limited exception to the general rule against finding an estoppel by the State. Hence, if defendant prevails at trial upon the contention that claimant has overbilled for the legal services rendered there will be no injustice in requiring that the sums overbilled be repaid.
In its decision and order filed on November 3, 1997, this Court rejected the argument that the review of quasi-judicial determinations of the Comptroller regarding the reasonableness of attorney's fees to be paid to outside counsel under Public Officers Law § 17 is beyond the jurisdiction of the Court. In a subsequent decision and order filed on July 27, 1998 this Court held that the Comptroller's quasi-judicial review and payment of claimant's vouchers did not preclude the State from asserting in its second affirmative defense and counterclaim that the sums already paid resulted from claimant's overbilling and such sums could be recouped by the State if it prevailed at trial. By this motion, claimant seeks to have the Court revisit the previously decided issues upon arguments that have already been considered and rejected. If claimant was dissatisfied with the prior decisions and orders of this Court his remedy was to appeal.

Multiple motions for summary judgment within the same action are looked upon with disfavor, even though permissible if the subsequent motion is based upon newly discovered evidence or other sufficient cause (Inter-Power of N. Y., Inc. v Niagara Mohawk Power Corp., 259 AD2d 932; Tuttle v McQuesten Co., 243 AD2d 930; Schriptek Mktg. v Columbus McKinnon Corp., 187 AD2d 800). However, prior decisions and orders determining the precise issues which are the subject of the subsequent summary judgment motion will be accorded law of the case status at the trial level, even though an appellate court would not be bound by that doctrine (see, Detko v McDonald's Rests. Of N.Y., 198 AD2d 208; McNeil v Wagner College, 246 AD2d 516). Here, the precise issue of whether a quasi-judicial determination by the Comptroller as to the reasonable value of services rendered by outside counsel under Public Officers Law § 17 after audit and payment by the State is subject to Court review has already been determined on two prior occasions by this Court. That issue will not be revisited.

Assuming arguendo that reconsideration of the issue is appropriate, claimant has not presented any evidentiary basis for a determination as a matter of law in his favor. The new evidence relied upon is the deposition testimony of Harvey C. Silverstein, an associate attorney in the Office of the New York State Comptroller who reviewed the vouchers submitted by claimant's counsel. In the Court's view, a review of Mr. Silverstein's deposition testimony does not in any manner warrant a determination, as a matter of law, that the number of hours worked by claimant in defending Mr. Montgomery was in accord with those hours that would have been expended by a reasonable attorney so engaged. Moreover, the affidavits of Mr. Silverstein, Geri Pomerantz, Richard J. Freshour and Brian J. O'Donnell raise issues of fact upon that issue precluding summary judgment. Claimant's motions are, accordingly, denied.

September 27, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion for leave to file a motion for summary judgment dated July 6, 2000;
  2. Affirmation of Jerold S. Slate dated July 6, 2000, with exhibits;
  3. Notice of motion for summary judgment dated July 6, 2000;
  4. Affirmation of Jerold S. Slate dated July 6, 2000, with exhibits;
  5. Affirmation in opposition of Dennis M. Acton dated July 25, 2000, with exhibits;
  6. Affidavit in opposition of Harvey C. Silverstein dated July 25, 2000;
  7. Affidavit of Geri Pomerantz sworn to July 20, 2000;
  8. Affidavit of Richard J. Freshour sworn to July 14, 2000;
  9. Affidavit of Brian J. O'Donnell sworn to July 14, 2000;
  10. Reply affirmation of Jerold S. Slate dated August 7, 2000.

[1]See, State Finance Law § 200(3) in which the Legislature has prohibited the Comptroller from recovering overpayments of salaries to State employees with limited exceptions.
[2]Although the defendant failed to plead the amount of damages sought by the counterclaim that omission was cured by a direction in the decision and order of this Court dated April 4, 1998 which directed the defendant to serve a further bill of particulars setting forth the specific sum of money it seeks to recover upon the counterclaim.