New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2002-013-001, Claim No. None, Motion No. M-63599


Claimant's motion for permission to file an untimely claim is denied as time barred. The conduct of the law firm that represented him on a earlier, successful motion, but failed to file a claim or to otherwise pursue the action, while at the same time leading Claimant to believe that his claim had been filed, was examined in depth at a hearing on the 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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On November 29, 2001, oral argument was heard and the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Jorge Cruz, pro se ("Cruz Affidavit"), with Attached Exhibits

2. Affidavit in Opposition of Wende E. Morcio, Esq. ("Morcio Affidavit")

3. Filed Papers: Interim Order (M-63599) filed September 26, 2001

As set forth in the Interim Order previously issued in this motion, Claimant, appearing pro se, has moved pursuant to Court of Claims Act §10(6) for permission to file an untimely claim. The proposed claim for personal injuries suffered when Claimant fell on an icy sidewalk at Wende Correctional Facility, arose on December 18, 1991. As a result of the fall, Claimant underwent a total hip replacement.

Because the three-year CPLR Article 2 statute of limitations applicable to this claim (CPLR 214) elapsed long before the motion was brought, it is beyond the power of this Court to grant the relief requested. Because of the unusual background, however, I directed that a hearing be held on the motion.

The factual background, as it was known at the time the Interim Order was issued, was as follows:

After his injury, Claimant timely filed and served a Notice of Intention (Cruz Affidavit, Exhibit A) and began trying to find an attorney to represent him. It was not until 1994 that an attorney was retained, however, and because no claim had been filed within two years of the date of accrual (see, Court of Claims Act §10[3]), the original Notice of Intention had not been effective in preserving Claimant's right to commence the action without court permission. In December 1994, Attorney Thomas A. Stickel of New York City moved on behalf of Claimant for permission to file an untimely claim. This motion was granted by former Judge Thomas P. McMahon, with the direction that filing and service of the claim "be accomplished in compliance with all applicable statutes and court rules (see, e.g., Court of Claims Act §11; CPLR 307; 22 NYCRR 206.5, 206.6) within sixty (60) days of receipt of a file-stamped copy of this Order." Judge McMahon's decision was filed on April 18, 1995. No claim was ever filed, however.

Copies of correspondence included in the motion papers (Cruz Affidavit, Exhibit D) establish that the attorney-client relationship between Claimant and the law offices of Thomas A. Stickel continued after the motion decision was issued and that Claimant believed, during most of this time, that his claim had been filed and his case was proceeding. In May 1995, Robert S. Bonelli, Esq., of the Stickel firm, wrote to Claimant returning certain medical and legal documents and indicating that the court had ruled in his favor. Claimant responded by providing updated information about his physical condition and questioning whether the attorneys had decided on the amount they were going to ask for in the claim. In June 1995, Mr. Bonelli replied, stating that they had not yet determined a settlement amount, but that they would be in a better position to determine a settlement range "[a]fter further discovery and evaluation." In September 1995, Claimant wrote to Mr. Bonelli to ask about the status of the case and, at that time he indicated that he wished to execute a power of attorney so that his brother-in-law could act on his behalf "in the event that something happens to me while in prison." In December 1995, Mr. Bonelli forwarded a power of attorney form to Claimant.

During the following year, Claimant wrote to Mr. Bonelli on several occasions requesting information on the status of the case, requesting that the power of attorney be changed to another individual, asking for a copy of the proposed claim that had been submitted with the motion to late file, and, in October, asking for a copy of the complaint (sic) that had been filed in the Court of Claims. In connection with this last request, Claimant stated, "I have never received a copy of this complaint, of which I feel I am entitled." Claimant does not attach a copy of the response that he received from the law firm, but on November 4, 1996, he wrote to thank Mr. Bonelli "for mailing me a copy of the claim submitted with the Court of Claims" and inquiring whether it would be too late to incorporate a cause of action for malpractice in connection with surgery performed on him. The next letter in the group supplied by Claimant is dated December 1998 and is addressed to Mr. Stickel, informing him of a change of address and asking why there had been no response to his letters or attempts to telephone the firm.

During March, June and July 2000, Claimant continued to write to Mr. Stickel, complaining of the law firm's lack of response and asking for a response and an update on the status, indicating at one point that he had contacted the Court of Claims and been told that no claim was pending. In January 2001, Claimant wrote to both Mr. Stickel and to the Chief Clerk of the Court of Claims, this time providing a reference number -- #92145749 -- which he refers to as a claim number. (I note that this number is not consistent with the numbering system used by the Court of Claims.) It appears that he received no response from Mr. Stickel, but in March 2001, the Chief Clerk wrote to confirm that no claim had been filed on Claimant's behalf and referred him to the Office of the Attorney General in the event he was attempting to get information about a Notice of Intention. Claimant commenced the instant motion shortly after receipt of the Clerk's letter.

In order to further inquire into this troubling series of events, I scheduled a hearing which was to be attended by Claimant, counsel for Defendant, Thomas A. Stickel, Esq., and Robert S. Bonelli, Esq. After an adjournment granted at the request of Mr. Stickel, the hearing took place on November 29, 2001, and the proceeding was recorded on audiotape. In attendance were Claimant; Assistant Attorney General Wendy E. Morcio, Esq.; George T. Delaney, Esq. of the law offices of Thomas A. Stickel;[1] and Robert S. Bonelli, Esq. Unfortunately, Claimant is Spanish speaking and does not understand English. The Court was not informed of this ahead of time so that arrangements could be made for an interpreter to be present. Unfortunately, therefore, Claimant was not able to participate in the hearing.

On behalf of the Stickel firm, Mr. Delaney stated that following Judge McMahon's April 1995 order, a claim was "filed" with the Attorney General on May 16, 1995. Apparently, however, no claim was ever filed with the Court. Mr. Delaney stated that the matter appears to have been handled by two young attorneys, who no longer work at the firm, and it can only be assumed that they did not know the procedures that should be followed for instituting an action in the Court of Claims. When asked if Claimant was notified of the error as soon as that information was received, Mr. Delaney acknowledged that there was no correspondence suggesting such a step was taken.

Mr. Delaney provided additional documentation, which included the letter to Claimant from Mr. Bonelli and Mr. Stickel dated May 10, 1995; June 16, 1995; April 26, 1996; August 28, 1996 and October 24, 1996. The earlier letters continued to inform Claimant that his claim was in the discovery state, and the October 24, 1996 letter purportedly conveyed to Claimant a copy of the claim that had been "filed with the Court." The Court was also provided with copies of the claim that, according to Mr. Delaney, was served on the State and a copy of the State's answer.

Mr. Delaney stated that according to the firm's records, the claim was never assigned to Mr. Bonelli. It was originally assigned to a Mr. Firestone, who left the office in the summer of 1995 and now serves in the Secret Service in Washington, D.C. Delaney hypothesized that Mr. Bonelli became involved because he frequently worked in the office in early evenings, when most inmate calls are received by the firm. When asked by the Court what recourse Claimant might have to recover for his injuries (assuming liability could be proven), Mr. Delaney -- with extreme and understandable reluctance -- acknowledged that the only possible avenue would be an action against the Stickel firm for legal malpractice.

Robert Bonelli, Esq., stated that during the summer of 1994 he was employed full time by another firm and working out of the Bronx Supreme Court. One of his friends worked for the Stickel firm and let him know that there might be a need for an additional attorney who would work on a per diem basis. Mr. Bonelli spoke with Mr. Stickel and agreement was reached whereby, for an hourly wage, he would work for the firm as time permitted. There were three types of cases on which it was agreed he would not be assigned to work: cases against the City of New York; cases against the State of New York; and cases involving police brutality. His specialty was automobile cases and slip and fall cases, and he focused on settling the actions.

Mr. Bonelli did not go to the firm every day, but dropped by whenever he could, frequently being there in early evening. Although he did not specifically "handle" cases such as the one that Claimant was seeking to bring, he would on occasion take telephone calls relating to such cases and, at the direction of Mr. Stickel, would sometimes be told the status of cases so that he could respond to correspondence. To the best of his recollection, he communicated with Claimant on four occasions and on one other occasion gave a power of attorney to a Miss Liriano, at Claimant's request. When he looked at the firm's computer records of the case, all he saw was that an answer had been received from the State and that discovery responses supposedly had been sent to the State. Mr. Bonelli would not see any correspondence, even if it was addressed to him, unless it was given to him by Mr. Stickel.

At the conclusion of the hearing, the Court advised Claimant, to the extent possible in light of the language barrier, that he would receive a copy of the decision of this motion and that he should expect the motion for permission to file a late claim to be denied, as the Court had no jurisdiction or discretion to make any other ruling. Claimant was also urged to discuss the entire matter, which would be reported in the decision, with his Inmate Counselor and perhaps with other attorneys who might be willing to help him pursue any available remedies. A record of the hearing will be made available to Claimant, free of charge, so that he may provide it to his Counselor and/or to any attorney that he may retain.

Claimant's motion is denied on the ground that it is time barred.

February 8, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Mr. Stickel, the individual directed to appear at the hearing by the Interim Order, was not present. He did not obtain the Court's permission to send someone else on his behalf, nor did he notify the Court that that was his intention. At present, no decision has been made about whether sanctions will be sought.