New York State Court of Claims

New York State Court of Claims

RAKOWSKI v. THE STATE OF NEW YORK, #2000-019-545, Claim No. 102298, Motion Nos. M-61877, CM-62376


State's motion to dismiss granted since claim barred by collateral estoppel and res judicata; Claimant's cross-motion to amend notice of 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:
Defendant's attorney:
BY: Anne C. Leahey, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 5, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for dismissal of Claim No. 102298 pursuant to CPLR 3211 in lieu of an answer. Claimant opposes the motion and cross-moves "[f]or an Order allowing the Claimant herein to file an amended Notice of Claim nunc pro tunc". ("Cross Notice of Motion to Amend Notice of Claim and Answering Affirmation").

The Court has considered the following papers in connection with this motion:

  1. DECISION & ORDER, Lebous, J., Claim Nos. 99294, 99347, 99561, 100158, 101050, Motion Nos. M-60132 & M-60595, filed February 17, 2000.
  2. Claim, filed April 14, 2000.
  3. Notice of Motion No. M-61877, dated May 30, 2000, and filed June 2, 2000.
  4. Affirmation of Anne C. Leahey, AAG, in support of motion, dated May 30, 2000, with attached exhibits.
  5. Cross Notice of Motion No. CM-62376, dated September 16, 2000, and filed September 18, 2000.
  6. Affirmation of Andrew F. Plasse, Esq., in support of cross-motion and in opposition to motion, dated September 16, 2000.
  7. Affidavit of Arlene Rakowski, in support of cross-motion and in opposition to motion, sworn to September 14, 2000, with attached exhibits.
  8. Proposed Claim, dated September 16, 2000.
  9. Amended Cross Notice of Motion, dated September 19, 2000 and filed September 25, 2000.
  10. Affirmation of Anne C. Leahey, AAG, in opposition to cross-motion, dated October 20, 2000 and filed October 26, 2000.
This Court previously dismissed five claims originating from the same facts and circumstances alleged herein. (Rakowski v State of New York, Claim Nos. 99294, 99347, 99561, 100158 & 101050, Motion Nos. M-60132 & M-60595 [hereinafter "Order #1"]). The current Claim alleges, in part, the following:
[l]atent effects of toxic exposure (Formoldehyde) and coupled with defective ventilation system, per toxicologist's report and neuro-toxicologist's report. (medicals) (Dr. Singer & Dr. Sawyer). Symptoms to me are not known as yet, regarding brain MRI dated Jan. 25, 2000.[1]

(Claim, ¶ 2). The Claim states an accrual date of January 25, 2000. The State has set forth numerous grounds for dismissal including res judicata and collateral estoppel, as well as failure to state a cause of action.

Both collateral estoppel and res judicata are founded in the equitable notion that a party should not be permitted to burden the judicial system and their adversaries with repetitive litigation of a claim or issue previously decided. (Ryan v New York Tel. Co., 62 NY2d 494). It is well-settled that "[r]es judicata and collateral estoppel generally deal with preclusion after judgment: res judicata precludes a party from asserting a claim that was litigated in a prior action [citation omitted], while collateral estoppel precludes relitigating an issue decided in a prior action [citation omitted]." (People v Evans, 94 NY2d 499, 502; emphases added). More specifically, collateral estoppel requires: (1) the proponent establish the identical issues were necessarily decided in the prior action and are decisive in the present action; and (2) the opponent prove there was not a full and fair opportunity to contest the prior determination. (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). By comparison, res judicata prevents the same party from bringing any other claims arising out of the same transaction or series of transactions, even if the claims are based upon different theories or seek a different remedy. (O'Brien v City of Syracuse, 54 NY2d 353, 357). The theory underlying the res judicata principle "[i]s that the party against whom it is being invoked has already had a day in court, and, if it was not satisfactory, the proper course was to appeal the unsatisfactory result rather than ignore it and attempt its relitigation in a separate action." (Siegel, NY Prac § 442, at 714 [3rd ed]).

These principles clearly apply to Claimant's newest claim. The five previous claims were dismissed on statute of limitations grounds because those Claims, which included allegations of brain damage, "[a]ccrued, at the earliest, in 1975, when Claimant first started experiencing symptoms or, at the latest, in June 1990." (Order #1, p 15). Additionally, each of those five Claims contained the same basic theory of liability that Claimant was injured while employed by the State Department of Labor due to the latent effects of exposure to various toxins from 1975 until April 1991 emanating from: (a) the State Office Building located in Hauppauge, New York; (b) furniture manufactured by Corcraft contained therein; and (c) improperly cleaned and/or maintained air ventilation system in the State Office Building. Those five claims were set apart from one another largely due to the different injury alleged in each, including Endometriosis, Neurotoxicity, Pelvic Floor Disorder, Fibromyalgia, Toxic Encephalopathy, Organic Brain Dysfunction, and general health problems and a date of accrual tied to the respective dates of diagnosis of each injury.

This new claim contains an identical theory of liability as the five prior claims of "toxic exposure" and "defective ventilation system" at the State Office Building in Hauppauge, New York. (Claim No. 102298, ¶ ¶ 2 & 3). This newest claim differs from the prior claims only in that it alleges an accrual date of January 25, 2000, derived from the date of an MRI scan which stated, in part: "[t]he finding is nonspecific, but could represent a small focus of gliosis. A demyelinating plaque or residua of prior inflammatory process cannot be completely excluded." (Cross-Motion, Exhibit A). The State's position is that Claimant's attempt to rely on this date of a tentative diagnosis as the accrual date presents the same exact issue as previously decided in Order #1. The Court agrees. This Court previously stated that "[t]he progression of an illness and the subsequent appearance of all its attendant symptoms do not create subsequent independent causes of actions, rather a claim accrues upon the manifestation of the first symptom of the primary condition." (Order #1, pp 8-9; emphasis added). Here, this Court previously concluded that "[t]hese claims accrued, at the earliest, in 1975, when Clamant first started experiencing symptoms or, at the latest, in June 1990" and, as such, "[e]ach of these claims are untimely for failure to comply with CCA § § 10 and 11 which must be strictly construed." (Order #1, pp 15 & 16). In opposition, Claimant argues that "Claimant could not have made a complaint of the conditions complained of herein, until the MRI findings were ascertained." (Affirmation of Andrew F. Plasse, Esq., ¶ 16). Claimant argues the Court should hold a fact-finding hearing to ascertain the commencement of the statute of limitations. (Affirmation of Andrew F. Plasse, Esq., ¶ 17). However, Claimant has failed to make any showing other than self-serving conclusions that this new injury, as evidenced by "gliosis" and "demyelinating plaque or residua of prior inflammatory process", is qualitatively different from the symptoms associated with her pre-existing injuries of sick building syndrome, multiple chemical sensitivity and/or chronic fatigue syndrome as previously outlined in Order #1. As such, this Court declines to hold a fact-finding hearing.

In sum, this Court finds both collateral estoppel and res judicata bar relitigation of this claim and these issues. As such, this Court finds that this Claim No. 102298, like the five before it, accrued, at the earliest, in 1975, when Claimant first started experiencing symptoms or, at the latest, in June 1990. The Court need not address the parties remaining arguments.

In view of the foregoing, it is ORDERED that the State's motion to dismiss, Motion No. M-61877, is GRANTED and Claim No. 102298 is DISMISSED; and Claimant's Cross-Motion CM-62376 is DENIED.

December 5, 2000
Binghamton, New York

Judge of the Court of Claims

Additional handwritten entries, not pertinent here, are contained on the face of this Claim.