New York State Court of Claims

New York State Court of Claims

WEST v. THE STATE OF NEW YORK , #2004-030-594, Claim No. 93369, Motion No. M-69342


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:
November 19, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Claimant's[1] application, brought by Order to Show Cause[2], for the issuance of certain subpoenas in the within Claim scheduled to be tried on the issue of liability on November 22, 2004:
1,2 Order to Show Cause; Attorney's Affirmation by Michael R. Scolnick, Attorney for Claimant and attached subpoenas

  1. Letter by Michael R. Scolnick, Attorney for Claimant, dated October 29, 2004
  2. Letter by J. Gardner Ryan, Assistant Attorney General, dated November 17, 2004
  3. Letter by Barry Kaufman, Assistant Attorney General, dated November 18, 2004
  4. Letter by Michael R. Scolnick, Attorney for Claimant, dated November 18, 2004, with attachment
  1. Letter by James Hennessey, Associate Attorney for the New York State Department of Civil Service, dated November 18, 2004
  1. Letter by Barry Kaufman, Assistant Attorney General, dated November 19, 2004
9-13 Filed Papers: West v State of New York, Claim No. NONE, Motion No. M-52522, Order (Midey, J., January 26, 1996); Claim, Answer, Answer to Supplemental Claim;[3] West v State of New York, Claim No. 93369, Motion No. M-56564; Decision and Order (Patti, J., April 6, 1998)
  1. Supplemental Claim dated February 27, 2003
  1. Letter by Michael R. Scolnick, Attorney for Claimant, dated November 19, 2004 enclosing original "Notice of Claim" used as exhibit in late claim motion number M-52522
After carefully considering the papers submitted and the applicable law the issues are disposed of as follows:
By Order filed January 26, 1996 Claimant was granted permission to serve and file a late claim. Court of Claims Act §10(6). The claim arose from the following facts recited in Judge Midey's determination:
On March 8, 1995 at approximately 9:15 a.m. Yolanda West was driving her car with her two year old daughter as a passenger. She passed a New York State Department of Transportation vehicle being driven by a New York State employee, one Richard Payne. As the road narrowed farther along, Defendant's employee forced Ms. West's car off the road as he passed her vehicle. Ms. West then followed Mr. Payne as he then stopped in a parking lot, came out of Defendant's vehicle, and began yelling at her. After he returned to the Defendant's vehicle and drove off, Ms. West again followed him, intending to take down information concerning the truck. Thereafter, Defendant's employee stopped the truck on Old Forge Hill Road near its intersection with New York State Route 32 in the Town of Windsor, New York. As Claimant was taking down information concerning the truck, Mr. Payne allegedly grabbed her, attempting to take the paper on which she was writing from her. Defendant's employee assaulted Ms. West, causing her physical and emotional harm. She reported the incident to the Police Department in the Village of New Windsor, Mr. Payne was arrested.
Notably, in the Notice of Claim dated May 9, 1995 prior counsel for Claimant had served upon the Attorney General - attached as an exhibit to the moving papers - the allegation that the Defendant had negligently hired and supervised Mr. Payne is asserted at numbered paragraph 7.

In that portion of his decision where Judge Midey considers whether the claim appears to be meritorious, he states: "The Court does find that the alleged actions of the defendant's employee, if true, would represent a meritorious claim against the State. The issue of whether or not the defendant's employee was working within the scope of his employment should be determined by a plenary hearing." The Court then granted the motion, directing that Claimant serve and file her claim within 30 days of receipt of a filed copy of the Order.

Claim Number 93369 was served on or about February 1, 1996, and filed in the Office of the Chief Clerk of the Court of Claims on February 5, 1996. An Answer was served and filed on or about March 8, 1996.

Between the date issue was joined, and the Claim's assignment to the undersigned, presumably some discovery was had, and at least some motion practice relative to the discovery. Certainly, in a Decision and Ordered filed April 6, 1998 Judge Patti had granted Claimant's application for discovery of records maintained by the New York State Division of Criminal Justice Services concerning Richard Payne [See Motion No. M-56564].

The Claim was assigned to the undersigned on July 13, 2001. A preliminary conference order forwarded to the parties in September 2001, and entered into between the parties and So Ordered by this Court on November 7, 2001, indicated that a Note of Issue and Certificate of readiness would be filed on or before December 4, 2001.

On January 14, 2002, changes to a discovery schedule were recited over the telephone by Claimant's attorney - including changes in the timing of depositions to March, 2002 - as being agreed to by both counsel. Counsel was directed to reduce any agreement to a written stipulation. No stipulation was sent.

By letter dated April 3, 2002, the parties were reminded that no stipulation had been sent pursuant to the January 14, 2002 telephone conversation, and directing advice concerning the status within two weeks. Although both attorneys spoke by telephone with the Court, and promised stipulations, none followed.

Thereafter, there appears to have been correspondence between counsel memorializing attempts at consent discovery that was copied to the Court, and apparently modifications to the Preliminary Conference Order were again agreed to, but no stipulation was forthcoming. On November 4, 2002, Claimant's attorney requested a compliance conference, that was held on December 11, 2002. At the conference, among other things such as revised deposition schedules, counsel verbally indicated that there was agreement that Claimant would serve an amended claim including a new cause of action for negligent hiring and retention within thirty (30) days. Counsel were directed to reduce their agreement to a written stipulation. They never did.

On January 27, 2003, the Court again wrote asking that both counsel submit a fully executed stipulation concerning whatever modifications applied to the original preliminary conference order to be "so ordered" by the Court, or appear for a further compliance conference. When no stipulation or appearance was forthcoming, Counsel were directed to appear for a calendar call on March 3, 2003.

On March 3, 2003, Counsel for Claimant appeared, and an Assistant Attorney General not regularly handling the matter, appeared before the Court, because the Assistant Attorney General assigned had forgotten about the appearance. There was discussion concerning the timing for service of an amended Claim - that had still not been served at that time - and of the State's Answer as well as a bill of particulars. There was no substantive discussion of exactly what any agreement concerning service of an amended claim entailed.

Sometime thereafter a "Supplemental Claim" was apparently served upon the Attorney General. It was not filed with the Court of Claims. On or about April 11, 2003 the Defendant served an Answer to the Supplemental Claim, raising three Affirmative Defenses, including a Third Affirmative Defense that the court lacked jurisdiction to hear the Supplemental Claim because "the initial claim was filed pursuant to an order of the court granting leave to late file a claim pursuant to Court of Claims Act §10(6). Any supplementation of the claim to assert a new cause of action requires either timely service and filing of a new claim or an order of the court pursuant to Court of Claims Act §10(6) granting supplementation of the filed claim to permit assertion of the additional cause of action . . . "

Although Counsel for Claimant apparently commenced correspondence with the Defendant's attorney thereafter seeking withdrawal of this defense, and apparently sought and secured stipulations regarding the extension of the date for filing a note of issue and certificate of readiness, Counsel did not secure a stipulation that the Third Affirmative Defense be withdrawn, nor did Counsel move to dismiss the defense, in the intervening period between April 2003 when the Answer to the Supplemental Claim was served, and January 29, 2004 when the Note of Issue and Certificate of Readiness was filed.

Having raised the Third Affirmative Defense, but not yet having specifically moved to dismiss the Supplemental Claim based upon this defense, the issue is now raised on the eve of trial - much as many jurisdictional issues are raised - with Counsel for Claimant expressing surprise that the agreed upon service of an amended claim to include a cause of action for negligent hiring and retention did not necessarily include the Defendant's waiver of any defense based upon timeliness concerns; and Counsel for the Defendant essentially indicating that Defendant had consented only to receive a piece of paper.

What was agreed to? Who knows. Since the parties did not reduce their agreement to a writing, the Court is left with actions, as well as failures to act, memorialized in Counsel for Claimant's somewhat scattered pursuit of discovery, and the intermittent and less than cooperative response by the Assistant Attorney General responsible for the case for most of the period that the matter has been assigned to the undersigned.

Had Claimant made a motion initially to amend his pleading pursuant to Civil Practice Law and Rules §3025(b), the Court would likely have granted the request. The Notice of Intention served in May 1995 gave the Defendant notice; the cause of action for vicarious liability premised on an agent's acts in the scope of his employment alleged in the claim coupled with the prior notice in the Notice of Intention gives ". . . notice of the transactions, occurrences, or series of transactions or occurrence to be proved pursuant to the amended pleading" for relation back purposes [See Civil Practice Law and Rules §203(f)]; and, asserting three (3) years after agreeing to "accept" an amended claim that the only thing agreed to was acceptance of a piece of paper to avoid motion practice is somewhat disingenuous. The Defendant is not prejudiced in any fashion by allowing hearing on the additional cause of action for negligent hiring and retention presented in the Supplemental Claim to go forward.

Accordingly, the Court finds that any hearing on the cause of action for negligent hiring and retention raised in the Supplemental Claim is not barred.
The subpoena directed to the New York State Division of Criminal Justice Services, based upon Judge Patti's prior order to disclose, and limited to any criminal record up to March 8, 1995, may issue, and has been executed of even date. The subpoena directed to the Justice Court of the Town of New Windsor, while it would not have been executed as presented because no date for whatever criminal action is alleged to have been heard there is noted, has nonetheless been responded to by the Justice Court of the Town of New Windsor and documents concerning case number 95030229 are being held by the Court. The subpoena directed to the City Court of the City of Newburgh will not be executed because it does not contain a date for whatever criminal action is alleged to have been heard there, although given the indication of a docket number 98-38865 the Court suspects it post dates the incident at issue in this claim and would thus be irrelevant. Similarly, the subpoena directed to the Justice Court of the Town of Plattekill does not indicate a date for whatever criminal transaction is alleged to have occurred, and, additionally, the Court recalls that in a prior version of a subpoena directed to this Justice Court the criminal proceeding alleged was October 30, 2002: well after the incident that is the subject of this claim. Finally, the subpoena directed to the State of New York, Employee Health Service seeks privileged material, and falls under the rubric of material sought by means of a subpoena that would not be discoverable except under very limited circumstances pursuant to the discovery provisions of the Civil Practice Law and Rules.

Claimant's application is, accordingly, granted in part and denied in part. This disposes of Motion Number M-69342.

November 19, 2004
White Plains, New York

Judge of the Court of Claims

[1] References to Claimant are to Yolanda West. Any claim by Vernon West is derivative.
[2] In accordance with the Order issued October 4, 2004 directing a Trial Preparation Conference (TPC) be held in connection with this Claim, and the directive therein that any anticipated legal issues be raised at that time, the parties raised the issue of the viability of the Supplemental Claim asserting an additional cause of action. Since Counsel had not briefed the issue at that time, they were instructed to provide authority for their respective positions to the Court by November 18, 2004. Because resolution of the present Order to Show Cause is intertwined with exactly what causes of action are before the Court, the Court will rule on the Supplemental Claim issue as well. The papers considered in connection with this aspect are included in the list considered on the motion.
[3] No Supplemental Claim has been filed with the Chief Clerk of the Court of Claims. See Court of Claims Act §§10 and 11; 22 NYCRR §206.5.