New York State Court of Claims

New York State Court of Claims

VAN STEENBURG v. THE STATE OF NEW YORK, #2002-015-222, Claim No. 103515, Motion Nos. M-64389, CM-64438


Pro se inmate claimant not entitled to recover attorneys fees and financial sanctions pursuant to 22 NYCRR Part 130 against Attorney General who had unsuccessfully sought sanctions against claimant for a frivolous moiton.

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:
Edward Van Steenburg, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant[1] seeks an order pursuant to 22 NYCRR Part 130 (§ 130-1.1 et seq) awarding him costs and attorneys fees in the amount of $257.67 and imposing financial sanctions against the Attorney General of the State of New York or personally against the Assistant Attorney General assigned to represent the State on his prior claim. The defendant's attorney cross-moves for an order imposing sanctions and assessing costs against the movant pursuant to 22 NYCRR § 130-1.1 and CPLR 2215 based upon movant's alleged frivolous conduct in making the instant motion following the dismissal of his claim and the denial of a previous motion to renew and/or reargue the original motion. Movant's motion is denied as is the State's cross-motion for costs and sanctions. In support of his motion the movant submitted an affidavit in which he alleges that he is qualified by education to act and did, in fact, act as a "paralegal/legal secretary/ law clerk" in regard to his own pro se motion for an order pursuant to CPLR 5015 originally returnable before this Court on September 19, 2001. The return date of the motion was adjourned by the Court to October 3, 2001 upon the written request of the Assistant Attorney General assigned to the matter. The movant argued on a prior motion, and continues to argue on the instant motion, that it was improper for defense counsel to have sought and to have obtained a two week adjournment by the use of a letter mailed directly to chambers rather than submitted through the Clerk of the Court. Movant argues that defense counsel's written adjournment request constituted frivolous conduct on her part as evidenced by the fact that the Court's decision and order dated November 5, 2001 did not list the letter in the papers considered. Movant then catalogues his time spent on legal research and writing and his expenditures relative to both the prior motion and the instant motion for which he seeks compensation. Movant also seeks to be compensated for time spent on defendant's purported prior cross-motion for sanctions which the Court denied on the basis that defense counsel's affirmation seeking such relief was not accompanied by a notice of motion. He alleges that defense counsel's attempted cross-motion was frivolous as a knowing, willing and intentional misrepresentation of the facts since defense counsel could not offer an affirmation in support of a non-existent motion. Movant argues that this Court's denial of his present motion would "substantiate a clear and convincing indication that AAG Resnick and [this court] . . . acted in a conspiring manner" in what movant describes as an ingenious attempt to make it appear as though the Court is not biased against him by not imposing sanctions against him on his earlier unsuccessful motion to renew and/or reargue.

The State opposed the instant motion and cross-moved by notice of motion dated December 11, 2001 for an order awarding costs and sanctions to defendant against movant pursuant to 22 NYCRR § 130 -1.1 and CPLR 2215. Defense counsel argues that her letter request for a two week adjournment of movant's earlier motion sent directly to Chambers did not violate § 206.5 (d) of the Uniform Rules for the Court of Claims and, therefore, does not constitute frivolous conduct. She also alleges that it is customary for a litigant or a litigant's attorney to direct such requests for extensions of time on pending motions directly to the assigned judge.

Motion practice including the scheduling of a motion in the Court of Claims is regulated by the rules of the Court set forth in 22 NYCRR § 206.9. That section, however, is silent with regard to the adjournment of a scheduled motion. Such silence calls into play the language of § 206.1 (c) which in relevant part states, "[t]he provisions of this Part shall be construed consistent with the Court of Claims Act, and matters not covered by these provisions or the Court of Claims Act shall be governed by the Civil Practice Law and Rules (CPLR)". Interestingly, article 22 of the CPLR which addresses motions in general is likewise silent with regard to the procedure to be used in effecting an adjournment of the return date of a motion. In the absence of a statute or rule regulating the adjournment of a motion one looks to the inherent power of the Court to regulate its own calendar which has long been recognized in this State (see, People v Douglass, 60 NY2d 194, 200; People v Cangiano, 40 AD2d 528). Moreover, "[a]n application for an adjournment is addressed to the sound discretion of the trial court" ( Shepard , Matter of, 286 AD2d 336; Anthony M., Matter of, 63 NY2d 270, 283).

In this case defense counsel contacted the Court by telephone to request a brief adjournment of the movant's motion. As is customary, counsel was directed to place that request in writing and to serve a copy of the request upon the movant, who in this case objected to the requested adjournment. The Court, thereafter, in the exercise of its discretion afforded defense counsel a two week adjournment to submit opposing papers. An adjournment request letter is not a "paper" required to be filed with the Clerk of the Court pursuant to 22 NYCRR § 206.5 and defense counsel's action in submitting the letter is not frivolous conduct as the term is defined in 22 NYCRR Part 130. Movant's request for costs and sanctions arising out of the defendant's adjournment request is denied.

Similarly, the Court finds no basis for the imposition of costs and sanctions arising from defense counsel's earlier failure to file and serve a notice of cross-motion with her affirmation requesting the imposition of sanctions against the instant movant. While a motion or cross-motion cannot be considered in the absence of a notice of motion or cross-motion it is, regrettably, a fairly common error of pro se litigants and attorneys alike to fail to submit the required notice of cross-motion. While such failure on the part of the State prevented the Court from addressing the merits of the intended cross-motion, it cannot be said that such failure renders the motion frivolous as that term is defined in 22 NYCRR § 130-1.1(c). Movant's request for costs and sanctions based upon this Court's denial of defense counsel's intended cross-motion is denied.

The Court is similarly unpersuaded that the imposition of a sanction upon the claimant is appropriate in that it cannot be determined, at this time and on this record, that the claimant's conduct was undertaken primarily to "harass or maliciously injure another" (22 NYCRR § 130-1.1(c)(2)).

February 11, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 27, 2001;
  2. Affidavit of Edward Van Steenburg sworn to November 27, 2001 with exhibits;
  3. Notice of cross-motion dated December 11, 2001;
  4. Affirmation of Kathleen M. Resnick dated December 11, 2001;
  5. Affidavit of Edward Van Steenburg dated December 13, 2001;
  6. Letter dated December 17, 2001 from Edward Van Steenburg .

[1]Claim number 103515 filed on December 12, 2000 was dismissed by decision and order of the Court dated April 24, 2001.