New York State Court of Claims

New York State Court of Claims

MORALES and MONTALVO v. THE STATE OF NEW YORK, #2003-030-544, Claim No. 105766, Motion No. M-66493


State's motion to sever individual Claimant's claims of unjust conviction denied.

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:
Third-party defendant's attorney:

Signature date:
May 22, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on Defendant's motion to sever

the claims of the individual Claimants pursuant to Civil Practice Law and Rules §603:

1,2 Notice of Motion, Affirmation of Janet L. Polstein, Assistant Attorney General and accompanying exhibits

3 Affirmation in Opposition of Randa D. Maher, Counsel for Claimants

4,5 Filed papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Denied. Jose Morales and Ruben Montalvo allege in Claim Number 105766 that after a joint trial they were erroneously convicted of the September 28, 1987 murder of Jose Antonio Rivera, and seek damages for their unjust conviction resulting in their almost thirteen (13) year imprisonment pursuant to Court of Claims Act §8-b. After successful pursuit of federal habeas corpus relief, these convictions were ultimately vacated by Bronx County Supreme Court Justice Bonnie G. Wittner by joint order and judgment in December, 2001.

Defendant argues that the consolidation of the claims of the two Claimants is not authorized by statute, order or stipulation; and that the Claim improperly joins two claimants who may submit different theories of their innocence and conflicting evidence to support those theories, and who are seeking different elements of damages. Defendant also argues that strict construction of Court of Claims Act §8-b requires severance because the statute speaks of a "single claimant" seeking redress. [Affirmation of Assistant Attorney General, ¶9].

Court of Claims Act §9(5) provides in pertinent part that the Court of Claims "shall have order two or more claims growing out of the same set of facts to be tried or heard together, with or without consolidation, whenever it can be done without prejudice to a substantial right." Moreover, while it is true that the requirements of Court of Claims Act §8-b are to be strictly construed [See, e.g., Vasquez v State of New York, 263 AD2d 539 (2d Dept 1999), lv denied, 94 NY2d 754 (1999); Torres v State of New York, 228 AD2d 579 (2d Dept 1996), lv denied, 89 NY2d 801 (1996)]; there is no language prohibiting two claimants from jointly pursuing their claims. As noted by Counsel for Claimants, recently a joint claim for unjust conviction brought by two claimants was very publicly settled. [See, Faison and Shepherd v State of New York, Claim No. 104592, filed July 18, 2001; see, also, 229 New York Law Journal, page 1, col. 3, Former Prisoners' $3.3 Million Wrongful Conviction Award is new York's Largest (January 16, 2003) ]. A review of the Claim in that case shows that the Claimants were convicted of different crimes surrounding the murder of a cab driver, were arrested some three months apart, pursued separate appeals as well as separate federal remedies, and both claimed to have been elsewhere at the time of the murder. These differences do not seem to have served as an impediment to pursuing their joint claim and trial in this Court, at least as far as it had proceeded before settlement.

While the Court has not found any other cases of record wherein more than one claimant has pursued a joint claim of unjust conviction,[1] it would strain a fair reading of the Court of Claims Act as well as the Civil Practice Law and Rules to say that relief for unjust conviction may only be sought by a single claimant, when relief under all other provisions of the Court of Claims Act is not so limited.

Civil Practice Law and Rules §603 provides that "...[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue...." The "companion" provision concerning consolidation provides "...when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceeding therein as may tend to avoid unnecessary costs or delay." See, Civil Practice Law and Rules §602(a). Similarly, the related provision on joinder of parties codifies the discretionary entitlement possessed by individuals to seek relief jointly when their claims arise out of the "same transaction, occurrence, or series of transactions or occurrences...if any common question of law or fact would arise." See, Civil Practice Law and Rules §1002(a). The decision on whether claims should be heard together is clearly within a trial court's discretion.

Defendant suggests that because each claimant here is asserting a different alibi defense involving different witnesses and time frames this will prejudice the State. As recited in the Defendant's motion papers the alibi defenses do not negate one another - or otherwise compromise consistency - thus this suggestion is somewhat opaque. Similarly, different experiences during their confinement in State correctional facilities is urged as another reason why the State would be prejudiced, as is the State's possible future problem with negotiating a just result should facts come to light during discovery that might warrant disparate treatment for one of the individual claimants. Again, the Court is not persuaded.

If anything, it would save time, money, and prevent the waste of judicial resources to proceed with discovery on the claim with respect to both Claimants as an initial matter. Should it appear at some future time that some less speculative reason for severance is warranted, certainly counsel may make the appropriate application. At this juncture, however, it is simply not sustainable for the reasons advanced by Defendant.

Accordingly, Defendant's Motion Number M- 66493 is in all respects, DENIED.

May 22, 2003
White Plains, New York

Judge of the Court of Claims

[1] Although it is not clear from the text whether the claims were brought separately or jointly, in Gittens v State of New York, 132 Misc 2d 399 (Ct Cl 1986), the Court considered together the claims of five different inmates seeking damages under various theories of false imprisonment and wrongful confinement, without flinching from the task.