New York State Court of Claims

New York State Court of Claims

BURCH v. THE STATE OF NEW YORK, #2003-031-100, Claim No. 96119, Motion No. M-66726


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:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Claimant for an order dismissing Defendant's counterclaim:
1. Claimant's Notice of Motion, filed April 18, 2003;
  1. Affidavit of Paul F. Murak, Esq., sworn to April 16, 2003;
3. Claimant's Memorandum of Law, dated April 16, 2003;
4. Affidavit of Richard B. Friedfertig, Esq., sworn to June 12, 2003;
5. Defendant's Memorandum of Law, dated June 16, 2003;
6. July 15, 2003 correspondence from Richard B. Friedfertig, Esq., with enclosure;
7. Filed documents: Claim and Answer. Claimant brings this motion seeking dismissal of Defendant's counterclaim in this matter.

The underlying claim alleges that, while in the care and custody of the Defendant at the Buffalo Psychiatric Center, Claimant was attacked by another patient at the facility. During the attack, this other patient bit off a portion of Claimant's right ear. Claimant alleges that Defendant negligently failed to prevent the attack.

In its verified answer filed on June 10, 1997, Defendant asserted a counterclaim for the value of services provided to Claimant while a patient at Buffalo Psychiatric Center, pursuant to Mental Hygiene Law (Mental Hygiene Law § 43.03). Claimant asserts that this counterclaim is an impermissible contingent counterclaim, which is prohibited under New York Law. For this reason, Claimant seeks to have the counterclaim dismissed.

Claimant correctly states that the law is settled in New York that a counterclaim must be a viable cause of action as of the date it is asserted and, therefore, "contingent counterclaims" are prohibited. Claimant argues, citing Brown v Stone (66 F Supp 2d 412), that a Claimant's "ability to pay" is a condition precedent to Claimant's liability for services rendered by the State. According to Claimant, Defendant has a viable counterclaim pursuant to Mental Hygiene Law § 43.01 only if the patient is able to pay. The parties do not dispute that unless and until Claimant recovers a money judgment in this claim, she is not capable of paying any part of the lien for services provided by Defendant. Claimant argues that Defendant's cause of action for recoupment, therefore, does not accrue until Claimant has the means to pay for the services, and that this renders Defendant's counterclaim contingent.

The issue is complex and neither side is without precedent supporting their position. Claimant's position, for example, appears to be supported by Brown v Stone (66 F Supp 2d 412, supra). In that case, Judge Block interpreted the Mental Hygiene Law to determine when the State's cause of action for recoupment of costs for services provided accrued. Judge Block stated:
[C]onsistent with the statutory mandate that "no person shall be denied services because of inability or failure to pay a fee," Mental Hyg. L. § 43.01(a), the standards for fixing and collecting fees "are and have always been cost and ability to pay." State v. Dolan, 89 Misc. 2d 1003, 1005 (Civil Ct., N. Y. County, 1977); see In re Kesselbrenner, 33 N.Y.2d 161, 166 (1973) ("State hospitals, under the jurisdiction of the Department of Mental Hygiene, are required to furnish services at a cost determined by ability to pay." (some internal citations omitted)) It plausibly follows that OMH cannot initiate litigation against a recipient of mental health treatment and services, or one statutorily responsible for the payment of charges, if that person is indigent."

66 F Supp 2d at 430 (citations omitted) (emphasis added)
In this decision the Court inexplicably equated fixing fees (accrual) with collection of fees. I find no support for this interpretation and I note that Brown v Stone (id.) is the only case to have interpreted the Mental Hygiene Law in this manner. It is clear that, at least with regard to fixing fees, the Mental Hygiene Law does not distinguish between patients who are able and those who are not able to pay.

The liability of a patient for the cost of services rendered to him is clearly defined in Mental Hygiene Law § 43.03(a) which provides that:
The patient, his estate . . . and his committee and any fiduciary or representative payee holding assets for him or on his behalf are jointly and severally liable for the fees for services rendered to the patient.
This section does not require the State to demonstrate a patient's ability to pay before liability for the services is fixed. Moreover, Mental Hygiene Law § 43.01(a) requires that patients be charged for services stating: "The department shall charge fees." And Mental Hygiene Law §43.03(b) provides that the Office of Mental Health's "acceptance of less than the full fee . . . shall not be construed to release a patient . . . from liability for payment of the full fee." Finally, the express language of Mental Hygiene Law § 43.07(c) makes it clear that the State's cause of action for services rendered "accrues when the fees become due" not, as Claimant argues, when a patient has the ability to pay.

In Langevin v State of New York, (Ct Cl, June 27, 2003 [Claim No. 95763, Motion Nos. M-65663, CM-65758, CM-65917], Corbett, J., UID #2002-005-563) the Honorable Judge Donald J. Corbett, Jr., addressed an identical issue. In that scholarly decision, he declined to follow Brown v Stone (66 F Supp 2d 412, supra), stating:
"I therefore conclude that the decision of the District Court in Brown v Stone, 66 F Supp 2d 412, supra, insofar as it held that the ability to pay is a condition precedent to the State's ability to assert counterclaims up to the amount of the recovery of damages in a negligence or malpractice action against the State constituted an impermissible contingent counterclaim because claimants' ability to pay was contingent upon the success of the underlying lawsuits, was erroneous and I decline to follow it. Any other conclusion would undermine other provisions of the Mental Hygiene Law . . ."
I concur with Judge Corbett's decision in Langevin and find that Defendant's counterclaim is viable and not contingent in nature.

Claimant also argues that permitting Defendant to assert such a counterclaim violates Claimant's equal protection rights under both the Federal and State Constitutions, runs contrary to public policy, creates a conflict of interest between Claimant and her attorney and creates a chilling effect which inhibits prospective claimants from asserting otherwise valid claims. I find no merit to these arguments, however, as these types of counterclaims have consistently survived such challenges (Siegel v Surles, Sup Ct, NY County 1995, Index No. 405319/93, [Lebedeff, J.], affd 239 AD2d 115 [1st Dept 1997] [affirmed on opinion below] appeal dismissed, 90 NY2d 934 (1997) ["Appeal dismissed upon the ground that no substantial constitutional question is directly involved"] see Brown v Stone, 66 F Supp 2d at 420 [Dist Ct 1999] for an explanation as to the holding in Siegel).

Accordingly, for the reasons set forth above, it is

ORDERED, that Claimant's motion to dismiss Defendant's counterclaim is denied.

December 8, 2003
Rochester, New York

Judge of the Court of Claims