New York State Court of Claims

New York State Court of Claims

POLLACK v. THE STATE OF NEW YORK, #2001-001-088, Claim Nos. 104439, 104440, Motion No. M-64247


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104439, 104440
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Marvin Arnold Pollack, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Albert E. Masry, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion to reargue this Court's decision in Pollack v State of New York, unreported decision filed Oct. 10, 2001: Notice of Motion, dated October 29 and filed October 30, 2001; Affidavit in Support of Motion to Reargue of Marvin Arnold Pollack, pro se, sworn to October 29 and filed October 30, 2001, with annexed Exhibits A-I; Affirmation in Opposition of Albert E. Masry, Esq., AAG, dated November 9 and filed November 14, 2001, with annexed Exhibit A; Reply Affidavit of Marvin Arnold Pollack, pro se, sworn to November 15 and filed November 16, 2001.

Claimant Marvin Arnold Pollack ("claimant") filed two claims (Claim Nos. 104439 and 104440) that the Court dismissed as duplicative and untimely in a prior decision and order (Pollack v State of New York, unreported decision filed Oct. 10, 2001, Read, P.J., Motion Nos. M-63849, M-63850 & M-63863, at 4-6). The Court also denied claimant's motion for poor person relief as moot in Claim No. 104440, and because procedurally deficient and unwarranted in Claim No. 104439 (id., at 5-6). Lastly, the Court declined claimant's request for a refund of filing fees, noting that it was without statutory or regulatory authority to entertain such relief after the fees had been properly paid, albeit by a mistake on claimant's part (id., at 7).[1]

Claimant now brings this timely (CPLR 2221 [d] [3]) motion to reargue, which defendant State of New York ("the State" or "defendant") opposes (Affirmation in Opposition of Albert E. Masry, Esq., AAG, dated November 9 and filed November 14, 2001, with annexed Exhibit A).

"A motion for reargument . . . is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (Foley v Roche, 68 AD2d 558, 567; see, CPLR 2221 [d]). Such motions are not perfunctorily granted and they are not intended to "afford an unsuccessful party successive opportunities to reargue issues previously [considered and] decided" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865, lv denied 88 NY2d 802; see, Foley v Roche, supra, at 567).

Here, upon a thorough review of claimant's motion papers and the arguments presented in them, the Court finds no reason to revisit the prior decisions. In short, there is no indication that this Court ignored prevailing law or failed to address an issue raised by claimant. Accordingly, the Court denies claimant's motion for reargument except insofar as to entertain so much of his motion as relies on Court of Claim Act § 10 (5), which was not raised on the prior motion (see, CPLR 2221 [d] [2]).

Court of Claims Act § 10 (5), restating the State Constitution (see, NY Const art III, § 19), provides that "[i]f a claimant shall be under legal disability, the claim may be presented within two years after such disability is removed" (Court of Claims Act § 10 [5]; see, CPLR 208 [providing toll for those under disability of insanity]). Because he has been judicially declared insane and has been continuously, involuntarily detained in State psychiatric facilities since December 1994, claimant contends that he is entitled to the presumption of legal disability as set forth in the statute at least until his "alleged disability of insanity" is removed (Pollack Aff., ¶¶ 27 [g]-33). Consequently, he concludes, the actions stated in Claim No. 104440 could not have been untimely because they were tolled during his disability.

Some background information pertaining to claimant's involuntary commitment is in order. Claimant was charged and indicted for attempted murder in 1993 after he assaulted his former wife with a knife while she slept (see, Pollack v Pollack, NYLJ, Oct. 25, 1999, at 40, col 3; People v Marvin P., NYLJ, Aug. 26, 1996, at 28, col 1). In August 1994, claimant was allowed to plead not responsible by reason of mental disease or defect (see, CPL 220.15; People v Marvin P., supra). Following another incident that took place while he was free on bail, claimant was determined to have a "dangerous mental disorder" and was committed to a secure State psychiatric facility (id.).[2] He has remained in secure psychiatric facilities since then upon subsequent retention orders (see, CPL 330.20 [8]; Pollack v Pollack, supra; Pollack Aff., ¶ 29).

It has been held that absent proof to the contrary, a claimant's confinement to a State institution on a commitment must be accepted as evidence of a legal disability during the period of confinement. That is, such evidence "is sufficient to overcome the presumption of a claimant's competency" (Boland v State of New York, 30 NY2d 337, 342; see, Danna v State of New York, 207 Misc 505, 507).

This does not, however, end the inquiry in this instance. A determination regarding the competency of a claimant, or lack thereof, "is largely a factual question" (McCarthy v Volkswagen of America, Inc., 55 NY2d 543, 548). It "necessarily involves consideration of all surrounding facts and circumstances relevant to [a] claimant's ability to safeguard his or her legal rights" (Matter of Cerami v City of Rochester School Dist., 82 NY2d 809, 812). While relevant to claimant's attempt to fall within the class protected by Court of Claims Act § 10 (5), his commitment under the CPL is not necessarily dispositive.

Noticeably absent from claimant's motion papers is any reference to the two-day hearing held pursuant to Article 81 of the Mental Hygiene Law that took place in July 1996 (see, Matter of Pollack, NYLJ, Sept. 27, 1996, at 31, col 1).[3] Eight witnesses, including claimant, testified at that hearing.

Specifically, the court-appointed Evaluator (Mental Hygiene Law § 81.09) amended his earlier position and testified that claimant did not need a guardian because he had demonstrated the ability to manage his affairs and property (Matter of Pollack, supra). Claimant's treating physician, the Director of Psychiatry at Kirby Psychiatric Center, likewise found claimant sufficiently capable of handling his daily affairs without the need for a guardian as, in fact, did all of the other witnesses. Supreme Court noted that claimant's own testimony and demeanor on cross-examination did not demonstrate the need for a guardian (id.); and concluded that claimant "failed to elicit any instances of confusion, disorientation, lack of understanding or other indications of functional limitations necessitating the last resort of appointment of a guardian" (id.).

Supreme Court was cognizant of and discussed claimant's then recent commitment under the CPL (id., citing People v Marvin P., supra), particularly observing that the CPL commitment hearing had focused on whether claimant suffered from a mental illness that caused him to represent a danger to himself or others, and that a primary concern in the decision to confine claimant under the CPL was the potential danger he still represented to his wife (see, id.; see also, People v Marvin P., supra). The analysis in the article 81 proceeding, however, focused on claimant's functional capacity (see, id.; Mental Hygiene Law § 81.02). Supreme Court thus dismissed the petition, reasoning that in view of the evidence presented during the article 81 hearing, claimant's mental illness and CPL commitment standing alone did not constitute a sufficient basis to conclude that he lacked the capacity to comprehend the consequences of his decisions or to function in a competent manner (Matter of Pollack, supra, citing Rivers v Katz, 67 NY2d 485, 494).[4]

Based on the totality of the available facts, this Court is likewise of the opinion that claimant's criminal commitment under CPL 330.20 does not, in and of itself, imply that he is incapable of managing his own affairs or, as is the inquiry here, establish that he is under a legal disability for purposes of Court of Claims Act § 10 (5) (see, Baker v State of New York, 186 AD2d 329 [Court of Claims Act § 10 (5) relief not available to one judicially determined not to be an incapacitated person]). That section's tolling effect, therefore, did not inure to claimant's benefit.

Based on the foregoing, the Court adheres to its prior decision and order filed October 10, 2001.

January 15, 2002
Albany, New York

Judge of the Court of Claims

[1]Claimant's motion papers indicate that a series of miscommunications among claimant, a friend of his and a private process serving company caused the company to advance the two filing fees at the time the claims were filed (Affidavit in Support of Motion to Reargue of Marvin Arnold Pollack, pro se, sworn to October 29 and filed October 30, 2001, with annexed Exhibits A-I ["Pollack Aff."], ¶¶ 9-18).
[2]A copy of this order is located in the Court's file for dismissed Claim No. 102947. A copy has been placed in this motion file.
[3]Nassau County Supreme Court, which was handling the divorce between claimant and his wife, suggested appointment of an article 81 guardian for claimant (see, Matter of Pollack, NYLJ, Sept. 27, 1996, at 31, col 1, supra). This hearing is also the subject of extended discussion in the practice commentaries to Mental Hygiene Law § 81.02, which notes that the touchstone for making a determination of whether a person is in need of a guardian "is not medically driven but one that focuses on functional abilities" (Bailly, 1997 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 34 A, Mental Hygiene Law § 81.02, 2001-2002 Pocket Part, at 60).
[4]If claimant had been judicially declared incompetent, he would be precluded from appearing pro se in this or any other action (see, CPLR 321 [a]; CPLR 1201; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321:1, at 318).