New York State Court of Claims

New York State Court of Claims

FORSHEY v. THE STATE OF NEW YORK, #2003-013-032, Claim No. 107718, Motion Nos. M-66913, M-66926, M-67395, CM-67077


Claimant's motions for appointment of counsel and to amend claim are denied; Defendant's motion to dismiss pursuant to CPLR 3216 for failure to comply with previous order is granted; Defendant's motion for a protective order is denied as moot.

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):
M-66913, M-66926, M-67395
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 5, 2003, the following papers were read on motion by Claimant for permission to proceed as a poor person and for appointment of counsel (M-66913), and for permission to file an amended claim (M-66926); and on motion by Defendant for a protective order (M-67395), and on cross-motion by Defendant for an order dismissing the claim:

Notice of Motion (M-66913), Claimant's Affidavit in Support and Exhibits Annexed

Affidavit of Richard B. Friedfertig, Esq., Assistant Attorney General, in Opposition and Exhibit Annexed

Notice of Motion (M-66926), Claimant's Affidavit in Support and Exhibits Annexed

Affidavit of Richard B. Friedfertig, Esq., Assistant Attorney General, in Opposition to M-66926

Claimant's "Affidavit in Opposition to Defendant's Affidavit in Opposition" (M-66926)

Defendant's Notice of Cross-Motion (CM-67077), Affidavit of Richard B. Friedfertig in Support of Cross-Motion and in Opposition to Motion No. M-66926, and Exhibits Annexed

Claimant's Responses to M-67395 and CM-67077 and Exhibits Annexed dated July 14, 2003 and September 14, 2003

Defendant's Notice of Motion No. M-67395, Affidavit of Richard B. Friedfertig, Esq., in Support and Exhibits Annexed

Claimant's Affidavit in Opposition to M-67395 and Exhibit Annexed

Claimant's Omnibus Response to all Four Motions herein sworn to October 12, 2003

Filed Papers: Claim; Answer; Decision and Order (M-65868) dated February 18, 2003

The Court has several motions before it. The first three motions were all returnable and deemed submitted on July 16, 2003. A fourth was originally made returnable on October 15, 2003, and thus, on September 19, 2003, I wrote to the parties and adjourned all motions to October 15, 2003. After a final, late submission by Claimant, not received at the Clerk's office until October 20, 2003, I directed that the final submission date for all four motions was November 5, 2003.

I will address the motions seriatim. Motion No. M-66913 seeks poor person status pursuant to CPLR 1102[a] and the appointment of counsel. This motion is denied for numerous reasons. Foremost, in Motion No. M-65868, dated February 18, 2003, Hon. Renée Forgensi Minarik granted Claimant permission to file the late claim which is currently before me, and, in that decision, Claimant's request for assignment of counsel was specifically rejected. Second, in an Order on this claim, filed on May 21, 2003, the Hon. Richard E. Sise granted Claimant a fee reduction (Court of Claims Act Section 11-a[1]). Since Claimant has already requested and been denied a prior application for an attorney, and since he has already been granted a reduced fee, and since there are no other costs necessary to prosecute a claim in the Court of Claims, and thus no other privileges are available under CPLR article 11, the motion is denied. In any event the appointment of counsel seeks relief that is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273), and there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra). Therefore, the motion for poor person status and appointment of counsel is denied again.

Claimant's second motion, No. M-66926, seeks to amend the claim. This motion is denied for several reasons. First, the proposed amended claim does more than Claimant insinuates, which is to more accurately conform the claim to the "Rules of Good Pleading." Indeed, it seeks to add additional causes of action, i.e., constitutional torts and medical negligence/maltreatment, which were either rejected by Judge Minarik in the application for permission to file a late claim noted above, or had not been presented to her. Furthermore, this motion was filed just some 33 days after Claimant filed the claim that is before me. Since Claimant had just sought the Court's discretion and was permitted to file a late claim, and since the instant motion appears to circumvent and go beyond the ruling by Judge Minarik that was nearly contemporaneous, and add causes of action which were previously rejected, the motion to amend is denied. To the extent that Claimant has added new causes of action in the proposed amended claim that were not specified in his late claim application, Claimant had the opportunity to incorporate those same causes of action in his original motion, and he provides no reason why he should be permitted to do so at this time. Regardless, given my ruling with respect to the State's motion to dismiss below, the motion to amend the claim is denied as moot.

I will digress to generally address Claimant's papers in these motions. He has argued that he needs an attorney because he has certain limitations that prevent him from adequately representing himself. On the other hand, he has submitted voluminous papers, and cites chapter and verse of many statutes and court rules, often tinged with sarcastic commentary. Specifically, he suggests that Defendant's counsel "isn't so up to date in the field of the Uniform Rules of the Court of Claims Title 22 N.Y.C.R.R. Part 206.7(b)" as it addresses the timeliness of the proposed amended claim. Claimant suggests that pursuant to that rule he has 40 days to amend a claim as of right. However, in the interest of clarity, Claimant should be advised that he was required to file a motion seeking to amend his late claim, and that one may not amend "as of right" a claim the filing of which was permitted by court order (Matter of Iazzetta v State of New York, 105 Misc 2d 567). Claimant further suggests that Defendant's attorney suffers from stupidity and ignorance in the field of law, and suggests that counsel has "no clue" as to the rules of the Court of Claims, the CPLR or the Court of Claims Act §§8, 9, 10 and 11. Claimant would be well advised to eliminate such ad hominem attacks, which will not be countenanced by the Court from a pro se claimant or an attorney representing a party.

That being said, I will now address the third motion before me, Cross-Motion No. CM-67077, in which the Defendant seeks to dismiss the claim. The Defendant notes that the earlier late claim application, which alleged causes of action sounding in negligence, malpractice, inadequate medical care and perjury, etc., was heard by Judge Minarik, who specifically granted limited permission to file a claim "identical to the proposed claim .... except that it shall assert only a cause of action for negligence relating to Claimant's slip and fall on April 1, 2002; and to do so in conformance with the requirements of CCA §§ 10, 11 and 11-a..." (emphasis supplied) within 60 days of the filing of her order, which occurred on March 7, 2003. The claim was filed on May 7, 2003, and in its answer dated June 5, 2003, Defendant alleges as its second affirmative defense the lack of subject matter jurisdiction because, inter alia, the claim was served by regular mail, which does not comply with the Court of Claims Act. There are additional affirmative defenses alleging jurisdictional infirmities, in addition to the sixth affirmative defense which alleges that pursuant to the order of Judge Minarik, noted above, the claim was to be limited to asserting a cause of action for negligence relating to the April 1, 2002, slip and fall, but that the filed claim is not so limited, is accordingly improper, and should be dismissed.

Claimant sought and received an extension of time to respond to this cross-motion seeking dismissal on these grounds. Indeed, Claimant filed an affidavit on October 20, 2003, which, inter alia, opposes the fourth motion before me, the Defendant's Motion No. M-67395 for a protective order vacating and striking the Claimant's demand to admit, and also addresses aspects of the Defendant's motion to dismiss.

I have given much deference to Claimant's pro se status and his purported limitations which he has articulated in his papers, but even allowing the broadest considerations thereof, Claimant has failed to adequately respond to the compelling grounds for dismissal alleged by the Defendant. The most significant of the grounds is the lack of jurisdiction due to improper service of the claim by regular mail, not by certified mail return receipt requested. Not only is such service required by Court of Claims Act §11(a), but Claimant's attention was directed to that statute specifically in Judge Minarik's order allowing the claim to be filed. I find that the second affirmative defense preserves that defense with the sufficient particularity required by Section 11[c], as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of New York, 152 Misc 2d 837) and refers both to the relevant statute and to the requirement that was vitiated.[1]

Claimant's opposition to this part of the motion inadequately addresses the issue. He addresses in Paragraph (7g) (Claimant's "Response to Defendant's Cross-Motion," Exhibit 1) an attempt to send his motion for permission to file a late claim on September 24, 2002, by certified mail, return receipt requested. That is irrelevant to service of the claim itself. In Paragraph (7h) Claimant then describes an inmate grievance dated September 30, 2002 regarding the facility mail room and the purported results thereof. In Paragraph (7i), Claimant describes yet another grievance regarding the facility mail room dated December 8, 2002. In Paragraph (7j), Claimant alleges that he mailed his notice of intention by certified mail return receipt requested on April 21, 2003. In Paragraph (7k), Claimant asserts that he mailed his claim to the Defendant and to the Clerk of the Court of Claims on May 1, 2003. He avers that he "intended and/or proceeded to mail Certified Mail Return Receipt Unitl [sic]" and that he then received a memorandum from the mail room at Wende Correctional Facility that purportedly had handwritten notes on his Authorized Advance Request dated 9-24-03 [sic] that "1st class only no required to be certified/R-R." For each of the aforementioned subparagraphs 7g to 7k, Claimant references exhibits (numbered 1 through 6), purporting to reflect the assertions made therein. None of these exhibits however are appended to any papers filed with the Clerk.

Furthermore, Claimant alleges or at least implies in Paragraph 8 that the Defendant's actions by denying the right to mail Claimant's claim, certified mail return receipt as required (referencing non-existent Claimant's Exhibits [1-6]) reflect an interference with legal mail. There is nothing in the record before me that supports Claimant's assertions, no documentary support, except for Claimant's bare allegations. Given the volume and numbers of Claimant's papers and submissions to me on each of the four motions encompassed by this decision and order, all of which obviously utilized the facility mail room, I find nothing in the record before me to support even an inference of interference with legal mail.

Claimant has failed to appreciate the jurisdictional imperatives of the Court of Claims Act, as the failure to comply with the manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). Despite the fact that a notice of intention here ostensibly was timely and properly served upon the Defendant, it is unequivocally clear that a claim must also be served in the statutorily required manner (Hodge v State of New York, 213 AD2d 766, appeal dismissed, 87 NY2d 968], and of course, here it was not.

That being the case, the motion to dismiss must be granted. Furthermore, Claimant's protestations of limitations and pro se status to the contrary, the claim must also be dismissed because it did not comport with the parameters of Judge Minarik's order granting permission to file a late claim, limited to allegations of a single cause of action sounding in negligence in a slip and fall, and specifically excluding all other causes of action sought in that earlier motion.

Claimant has with impunity gone beyond that order, and filed an improper expanded claim which included several causes of action permission for which had been previously denied. An overview of the papers in front of me demonstrates that Claimant has sought at least three bites at the same apple: first, he sought permission in his late claim application; then when he achieved limited success as to one cause of action, he went ahead and filed a claim containing already rejected causes of action, and finally, he then sought to amend the filed claim (which already contained unauthorized causes of action), trying again for permission to file the same previously rejected causes of action, and yet additional cause[s] of action. Claimant's disregard of the Court's previous order, boldly including rejected causes of action, is a complete waste of judicial time and resources. If Claimant were aggrieved by the limitations of Judge Minarik's decision and order in his late claim application, he had the opportunity to appeal to the Appellate Division. This decision and order will give him another opportunity to do so. Cross-Motion No. CM-67077 is granted and the claim is dismissed.

Accordingly, since the claim has been dismissed, the Defendant's Motion No. M- 67395, seeking a protective order, is denied as moot.

November 25, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1] Among the many defenses that the Defendant had available was one based upon the untimeliness of the filing of the claim. Judge Minarik's order required service and filing within 60 days of the filing of her order. Filing of the order occurred on March 7, 2003, but the claim was not filed until May 7, 2003, at least one day late. Interestingly, this defense was not preserved in the answer .