New York State Court of Claims

New York State Court of Claims

KOMLOSI v. THE STATE OF NEW YORK, #2001-001-018, Claim No. 73476, Motion No. M-62285


Synopsis



Case Information

UID:
2001-001-018
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-62285
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Burchetta, Collins & HanleyBy: Christopher G. LaFrance, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 15, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion seeking permission to reargue or renew a prior order of the Court pursuant to CPLR 2221, which denied his motion to vacate a prior dismissal of his claim: Notice of Motion, dated August 24 and filed August 31, 2000; Affirmation in Support of Christopher G. LaFrance, Esq., dated August 24 and filed August 31, 2000, with separately bound Exhibits A-F; Affirmation of Sonia Crannage, Esq., undated and filed August 31, 2000; Affidavit in Support of Mark Komlosi, sworn to August 28 and filed August 31, 2000, with annexed Exhibits A-H; Claimant's Memorandum of Law, dated August 24 and received August 31, 2000; Affirmation in Opposition of Grace A. Brannigan, Esq., AAG, dated September 25 and filed September 27, 2000; Reply Affirmation of Christopher G. LaFrance, Esq., dated October 2 and filed October 6, 2000; and Letter to the Court from Richard J. Katz, dated October 30 and received November 2, 2000.[1]

This claim's history in the Court of Claims was summarized in a Decision and Order filed on June 28, 2000 (Komlosi v State of New York, Ct Cl, unreported decision filed June 28, 2000, Read, P.J., Motion No. 60761),[2] in which the Court denied claimant's motion to vacate the 1995 dismissal of his claim for malicious prosecution. The Court there called attention to claimant's failure to take any remotely timely steps to restore his claim despite having received explicit directions how to do so (Affirmation in Support of Christopher G. LaFrance, Esq., dated August 24 and filed August 31, 2000, with separately bound Exhibits A-F ["LaFrance Aff."], Exh. A). Claimant entreated the Court for another chance because of his difficulty in locating an attorney to represent him, an excuse that she found unpersuasive.

Seizing upon the Court's further observation that claimant had already been awarded full damages in his action in federal court against Melanie Fudenberg, the New York State employee whom he had identified as responsible for his alleged malicious prosecution, claimant again asks the Court to vacate the 1995 dismissal,[3] now arguing that the acts and omissions of other New York State employees who were allegedly aware of Fudenberg's propensity to make unwarranted accusations substantially contributed to his alleged malicious prosecution (Affidavit in Support of Mark Komlosi, sworn to August 28 and filed August 31, 2000 ["Komlosi Aff."], ¶¶ 2-10; LaFrance Aff., ¶¶ 4-7; Affirmation of Sonia Crannage, Esq., undated and filed August 31, 2000). This new theory would seem to sound in negligence, not malicious prosecution--which requires, among other things, a showing of actual malice (see, Nardelli v Stamberg, 44 NY2d 500)--and appears indistinguishable from the "negligent hiring" and "negligent investigation" claims found legally defective by the Court in 1987 (see, Memorandum Opinion and Order of Hon. Albert A. Blinder, Motion No. M-35834, dated February 4 and filed February 11, 1987). In any event, claimant has still not proffered any reasonable excuse for his four-year delay in moving to restore this claim, which relates to events that took place a decade and a half ago.

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


March 15, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims



[1]The Court also again reviewed the motion papers submitted on claimant's Motion No. M-60761.
[2]The facts underlying this claim are discussed in some detail in Komlosi v New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, and Komlosi v Fudenberg, 2000 U.S. DIST. LEXIS 11524.
[3]Although claimant casts his motion as one to reargue or renew under CPLR 2221, "[w]hen a proceeding has been reduced to a final judgment . . . the proper procedural remedy [to seek relief from the trial court] is a motion pursuant to CPLR 5015 (citations omitted)" rather than a motion pursuant to CPLR 2221 (Matter of Willard v Town Board of the Town of Hamburg, 216 AD2d 861, 862; see also, Reed v County of Westchester, 243 AD2d 714 [where final judgment dismissed special proceeding on the merits, petitioner proffering allegedly newly discovered evidence should have moved pursuant to CPLR 5015 and not by way of CPLR 2221 motion to reargue]).