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
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,
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
Accordingly, the Court finds that any hearing on the cause of action for
negligent hiring and retention raised in the Supplemental Claim is not
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.