New York State Court of Claims

New York State Court of Claims
FUDENBERG v. THE STATE OF NEW YORK, #2005-030-921, Claim No. 108447, Motion Nos. M-67598, M-68102, CM-67763

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-67598, M-68102
Cross-motion number(s):
Claimant’s attorney:
Bolatti & Griffith, LLPby Edward Griffith. Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney Generalby Susan J. Pogoda, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2005
White Plains

Official citation:

Appellate results:
AFFIRMED 35 AD3D 281 2D DEPT 2006
See also (multicaptioned case)


The court read and considered the following papers on claimant’s motions for permission to file a late claim and permission to file a second amended claim and defendant’s cross-motion for dismissal or summary judgment: Notice of Motion (M-67598), Affirmation, Affidavit and Exhibits, Notice of Cross-Motion, Affirmation and Exhibits; Reply Affidavit, Affirmation and Exhibits; Claimant’s Memorandum of Law; Notice of Motion (M-68102), Affirmation and Exhibits; Defendant’s Affirmation in Opposition; Defendant’s Reply Affirmation and Exhibits.
This claim arises out of the 1985 arrest and indictment of Mark Komlosi on sexual abuse charges in Brooklyn. At the time, Komlosi held a permanent civil service position as a psychologist with the State Office of Mental Retardation and Developmental Disabilities (OMRDD) and was stationed at the Williamsurg Rehabilitation and Training Center. The criminal charges resulted from allegations that he had sexually abused a client at the facility. During the criminal trial, the client/victim admitted that the charges were untrue and that another employee at the facility, Melanie Fudenberg, had forced him to lie. On May 29, 1986, the charges were dropped and Komlosi requested that the pending disciplinary charges also be dropped and that he be reinstated to his position. On August 27, 1986, Komlosi was advised that the pending disciplinary charges were withdrawn and that he should report to work on September 2, 1986. He did not do so, and on September 15, 1986, he advised the facility that he was resigning because of a health problem. In December 1986, Komlosi received full back pay for the period during which he had been suspended. In September 1987, Komlosi requested reinstatement to his former position, which request was denied.
In March 1988, Komlosi commenced an action in the United States District Court for the Southern District of New York, pursuant to 42 U.S.C.§ 1983, against numerous defendants including, as relevant here, Melanie Fudenberg, OMRDD and various other state officials. In a September 1995 decision, the United States Court of Appeals for the Second Circuit held that all of the state defendants in that action other than Fudenberg, including OMRDD, were entitled to summary judgment (Komlosi v New York State Office of Mental Retardation and Developmental Disabilities, 64 F3d 810). The result of that decision was that the sole remaining defendant was Melanie Fudenberg.
In addition to commencing the federal action, Komlosi brought a claim against the State of New York in this court (Claim No. 73476), alleging that the state was responsible for the actions of Fudenberg. In January 1990, after Komlosi informed the court that he wished to proceed with the federal action, Komlosi and the state stipulated that the claim be dismissed but that the dismissal could be vacated within two years. In 1993, Komlosi moved to vacate the dismissal and his motion was granted. Two years later (in August 1995) the claim was dismissed for failure to prosecute as the result of Komlosi’s attorney’s failure to appear at a conference. Four years later, in November 1999, Komlosi moved to vacate the order of dismissal and restore the claim to the calendar, a motion that was denied (Komlosi v State of New York, Ct Cl, Read, P.J., unreported decision dated June 22, 2000, UID No. 2000-001-018, affd 288 AD2d 188).
In the meantime, the federal action proceeded, after an aborted attempt at settlement, to trial and eventual entry of judgment against Fudenberg in the amount of $2,372,988.00 (Komlosi v Fudenberg, 2000 WL 351414 [SD NY]). According to the papers before the court, that judgment remains unpaid to date. Although Fudenberg has attempted to obtain indemnification from the state pursuant to Public Officers Law §17(3)(a) (see letter from Mark E. Goidell, Esq., counsel to Fudenberg, dated January 8, 2003, Exhibit “20" to Komlosi Reply Affidavit), such has not occurred.
On October 2, 2003, Komlosi’s unopposed motion to be appointed post-judgment receiver for Fudenberg was granted, pursuant to Fed. R. Civ. P. 69(a) and CPLR §5228, “ for purposes of administering, prosecuting and liquidation the Judgment Debtor’s claims against third parties for indemnification of the judgment or for damages that could be used to satisfy the judgment” (Claim, Attachment “1"). On October 24, 2003, the instant claim was filed, by “Claimant Melanie Fudenberg (“Fudenberg”), by her court-appointed Receiver, Mark Komlosi,” containing two causes of action, one labeled “intentional breach of fiduciary duty” and the other labeled “fraud.” On November 4, 2003, claimant served a “First Amended Claim” on defendant, containing the same two causes of action but with a slightly different recitation of the allegedly relevant facts. Although it does not appear that claimant filed this document with the court, defendant served and filed an answer and since the differences between the claim and the “First Amended Claim” are of no significance, the court will, for simplicity’s sake, refer simply to the “claim” except when quoting from either document.
Three motions are currently before the court: claimant moves for permission to file a late claim, adding a cause of action for breach of contract, defendant cross-moves for dismissal and/or summary judgment, and claimant moves for permission to file a “Second Amended Claim,” identical to the “First Amended Claim” but identifying claimant in the caption as “Melanie Fudenberg, and Mark Komlosi, as Receiver for Melanie Fudenberg” and adding a verification. Claimant’s two motions require no extended discussion. The verification issue has been removed by the Court of Appeals’ decision in Lepkowski v State of New York (1 NY3d 201) and the proposed amendment of the caption merely reflects what was already explicit from the narrative of the claim – that the real claimant in this action is Komlosi, acting in his capacity as receiver (i.e., “prosecuting . . . [one of Fudenberg’s] claims against third parties for indemnification . . . or for damages,” Claim, attachment “1"). The addition of a cause of action for breach of contract would simply be a re-styling of the same allegations that appear in the original claim and would not seem to require late filing relief but perhaps could be accomplished through permission to file, say, a “Third Amended Claim.” Nevertheless, since defendant’s motion for summary judgment is dispositive, the court need not formally reach claimant’s motions.
The essence of claimant’s position herein is summarized in paragraph 1 of the First Amended Claim:
This is an action to recover damages for breach of contract, breach of fiduciary duty and fraud arising out of a September 19, 1997 settlement between Fudenberg, the State and the plaintiff in a lawsuit brought against Fudenberg entitled, Komlosi v Fudenberg, et al, 88 CV 1792 (JFK) (HBP), in the United States District Court for the Southern District of New York (the “Federal Lawsuit”). Because the State breached its obligations and committed fraud in connection with that settlement, the Federal Lawsuit proceeded to trial against Fudenberg and resulted in a judgment against her of approximately $2.4 million. Had the State complied with its obligations and not committed fraud, Fudenberg would have been spared years of painful litigation and the judgment against her never would have been entered.
A detailed examination of this September 19, 1997 “settlement” is required. On that date, Komlosi was represented by Robert Tolchin, Esq. and Fudenberg was represented by Craig Davidowitz, Esq., of counsel to Mark Goidell, Esq. Although the state was no longer a party to the action, Assistant Attorney General Vincent Leong participated in the proceedings. Asked to recite the terms of the settlement agreement on the record, Mr. Tolchin stated as follows:
Mr. Tolchin: There’s one more wrinkle that’s part of the settlement that we weren’t aware of before, but it shouldn’t be a problem. The case will be settled today. We will execute the conditional order – or the order of dismissal with a proviso that it can be – the case can be restored within 120 days if the settlement doesn’t go off the was it’s supposed to.
The terms of the settlement . . . will apparently have to be drafted into a settlement agreement, which will be drafted by the Attorney General’s office, and obviously subject to meeting what was agreed to and being approved by us, by the plaintiff. If for any reason they do not, the Attorney General does not draft that agreement, or we cannot reach agreement on the actual nuts and bolts of the settlement agreement, then it’s our understanding that that would constitute a basis for reopening this case.
The terms of the agreement are that Mr. Komlosi will be paid $200,000 in settlement of this action. In addition to $200,000, Mr. Komlosi will receive the offer of a – or an interview for a job at the . . . Letchworth Facility, which is located in Rockland County. That interview will be on a preferred basis, and it’s our understanding that that means that it will be a non-competitive interview. In other words, nobody else will be interviewing for the same position.
It’s our understanding that there is no position open or available today, but the Attorney General’s office anticipates that a position will be opening up within the foreseeable future. And Mr. Komlosi will be – assuming he survives that interview, will be offered the next position that opens up at the Letchworth Facility at his grade level. (Exhibit “2" to Komlosi’s Reply Affidavit, 3-4).
Komlosi then asked for clarification of his attorney’s word “surviving”:
Mr. Komlosi: It’s unclear that whether – the issue of surviving the interview, that has to be clarified. (id., 5).
Attempting to clarify what he meant by the word “surviving”:
Mt. Tolchin: . . . the interview will proceed on a good faith basis. And Mr Leong has indicated that there’s every reason to believe the interview will take place in the next 30 days. Mr. Komlosi will be given a fair chance at the interview. This is meant as a good faith interview and not as a mere ceremony. (id., 5,6)
There next ensued a discussion of civil service issues relating to pay grade and permanency, not at issue herein since Komlosi was never offered a position. Mr. Leong indicated that the details could be resolved when the final stipulation of settlement was drafted, and Mr. Tolchin continued:
Mr. Tolchin: And it’s our understanding here, Mr. Komlosi, that if for whatever reason we can’t reach a final agreement working out the nuts and bolts of the detailed settlement stipulation that Mr. Leong and I will negotiate, if for any reason that can’t happen, we can tell the Court that we could not work it out as we had thought we could and we can ask the Court to restore this case. (id., 9).
An order was signed on that date, providing that the action was discontinued but that Komlosi could apply to restore the action within 120 days. Proposed settlement agreements were drafted and exchanged among counsel, but no written agreement was ever reached or executed. Meanwhile, the interview process commenced.
Assistant Attorney General Leong advises that, after Komlosi’s interview at Letchworth, Leong was “advised by OMRDD Deputy Counsel Rick Wolfe that Komlosi had essentially disqualified himself at the interview by stating that he did not want to work with OMRDD clients. Accordingly, I informed Komlosi’s and Fudenberg’s counsel that Letchworth would not be offering him a position.” (Leong Affirmation dated December 8, 2003, par 14). Komlosi then advised the court that the state had not offered him a position and requested that the action be restored to the calendar. A conference was held on January 15, 1998 and, after a change of counsel for Komlosi was accomplished – with Mr. Tolchin departing and Edward Chase, Esq, now appearing for Komlosi – an extension of the 120 day period to finalize the settlement was agreed to, with an additional 60 days added to that period. At least part of the reason for that extension was the attempt to find another position for which Komlosi could interview:
Mr Leong: Although Letchworth was the only facility that was the subject of the September 19, 1997 understanding, OMRDD also attempted to see if Komlosi would be suitable for a position at another facility, but that also did not work out. After OMRDD attempted to find another potential vacancy for Komlosi, I was advised by OMRDD Deputy Counsel Wolfe, to the effect that, whereas Komlosi was still expressing interest in a position with no contact with OMRDD clients, the only vacancies arising in the near future (as OMRDD was then downsizing) would be in positions where there would be at least some potential for client contact. (id., par 16).
A further conference was held on March 27, 1998, with Cory J. Rosenbaum, Esq. having been substituted for Mr. Chase as Komlosi’s counsel and Mr. Goidell and AAG Leong also present. Mr. Rosenbaum advised the court that his client was still willing to accept the proposed settlement, that several interviews had been scheduled and that no job offer had materialized. He went on:
I’m under the impression from Mr. Leong from the State of New York that at this point in time there is going to be no guaranteed position. Therefore, we would respectfully request that the Court place this case on the trial calendar . . . (Exhibit “F7” to Notice of Cross-Motion, 3).
Asked to explain what had happened, AAG Leong stated:
The facility felt that Mr. Komlosi did not have sufficient background to qualify, or at least the fit was not there, so the facility was not going to be offering Mr. Komlosi a position. So that was the second effort by the state during the settlement proceedings. I don’t think there is realistically anything else out there for the foreseeable future. (id., 4)
Komlosi’s counsel then stated that his client would accept an additional $400,000.00 (approximately) in lieu of the job offer, but such an offer was not forthcoming and the trial was scheduled for October 5, 1998.
On September 22, 1998, Mr. Rosenbaum faxed AAG Leone a letter indicating that Komlosi was willing to settle for $250,000.00 and pointing out all of the possible exposure the state would save by such a settlement, including the funds it was expending for Fudenberg’s representation. AAG Leong states that he had further negotiations with Komlosi’s counsel, but a settlement was never reached and the case proceeded to trial and to entry of the judgment against Fudenberg.
Richard Wolfe, Associate General Counsel for OMRDD, advises that he was asked by AAG Leong in 1997 if he could arrange for Komlosi to be interviewed for a psychologist position at an OMRDD facility, as the result of which Komlosi was interviewed for a position at Letchworth. Komlosi was interviewed by Dr. David Booth and, after the interview, Dr. Booth advised Wolfe that the interview had gone well, except that at the end of the interview, Komlosi asked whether he would be required to work with mentally retarded patients and that, when Dr. Booth responded that he would, Komlosi related his prior experience regarding the allegation of sexual misconduct. Wolfe states that, in subsequent conversations with Komlosi’s counsel, he explained that working with mentally retarded patients was a basic requirement of a psychologist position with OMRDD, and he was asked if he could arrange for a position that did not involve such contact. He was unable to do so, and in January 1998, he advised Komlosi that Letchworth would not be offering him a position ((Affirmation of Richard Wolfe dated December 1, 2003, Exhibit “G” to Notice of Cross-Motion).
Wolfe goes on to state that he was subsequently contacted and asked if he could arrange for an interview for Komlosi for a position with minimal or no patient contact, resulting in Komlosi’s interview with OMRDD’s Institute of Basic Research (IBR). Wolfe goes on to state:
On information and belief, Mark Komlosi raised objection at his IBR interview to the statement that mentally retarded people might occasionally come into the building to which he would be assigned. On information and belief, IBR attempted to assure Mark Komlosi that his ordinary duties would not require direct patient contact, but that IBR could not provide an absolute guarantee that he would never encounter mentally retarded patients.
I subsequently called Assistant Attorney General Vincent Leong and informed him that it was my opinion that Mark Komlosi was sabotaging his interviews. I advised AAG Leong that despite my best efforts, I could not identify any employment situation for which Mark Komlosi would survive an employment interview. (id., par 17).
Wolfe notes that employment decisions are made by the directors of the OMRDD facilities, and not centrally, and that an interviewee does not “survive” an interview unless, based on the interview, the director makes an employment offer. Thus, he concludes, Komlosi “did not ‘survive’ the interview[s], as neither director found that [he] interviewed sufficiently well to warrant an offer of employment” (id., par 19).
As noted, the basis of this claim, ostensibly brought by Fudenberg, via her receiver Komlosi, is that the State of New York (1) breached a fiduciary duty to Fudenberg, (2) breached a contract with Fudenberg and (3) committed fraud against Fudenberg. The initial motion, which seeks to add the breach of contract cause of action to the claim, was supported by an affidavit from Komlosi, basically relating that he had the two interviews, that he thought they went well, that he was informed at a court conference that no job offer would be forthcoming and that the federal action then proceeded to trial. In response to the state’s cross-motion for summary judgment, he submitted a reply affidavit with an extended account of these events, accompanied by transcripts of seven telephone conversations he had with Wolfe, Dr. Booth and Jeffrey Kimma, the personnel director at Letchworth, and a CD recording of these conversations. The initial motion was also supported by an affirmation from Mark Goidell, Esq., who has represented Fudenberg in connection with the subject events since September 1992.
Goidell advises that between November 1997 and January 1998 he had telephone conversations with AAG Leong, who told him that Komlosi had not survived the Letchworth interview and that, based on that information, he concluded that the proposed settlement was not enforceable since the state was not required to offer Komlosi a position. He noted that the settlement period was then extended and that Komlosi had a second interview and that, again AAG Leong told him that Komlosi had not survived the interview.
Goidell goes on to relate that on September 26, 2003, he received a telephone call from the attorney who was then (and now) representing Komlosi and that “[d]uring that telephone conversation, Mr. Griffith informed me for the first time that Komlosi had evidence that he survived the Letchworth job interview in October 1997.” (Goidell affirmation dated October 30, 2003, par 12). Goidell does not state what such evidence was, or whether he even asked Griffith what the evidence was. Nor does he state what he meant by the word “survived” or whether he asked Griffith how it was that Komlosi “survived” the interview but was not offered a position.
Komlosi, in his reply affidavit, advises that he had the interview with Dr. Booth on or about October 15, 1997. He states that he indicated that he was willing to accept a clinical position or any other position at his former pay grade. He further states that after Dr. Booth asked him about the sexual abuse incident and he explained the whole story, Dr. Booth asked him if he wouldn’t feel more comfortable in a non-clinical position in order to avoid contact with mentally retarded patients and he responded that he would prefer a non-clinical position for a number of reasons.
Komlosi states that “[a]fter the interview, I repeatedly expressed my interest in, and willingness to accept, a clinical position with the OMRDD” (Komlosi Reply Affidavit sworn to June 30, 2004, 5). The first of the recorded telephone conversations then ensued, with Komlosi calling Dr. Booth sometime in November 1997. Komlosi states that he had been in contact with Mr. Wolfe, the OMRDD counsel, who indicated that some negotiation might be necessary. Dr. Booth stated that Wolfe was in contact with Komlosi’s lawyers over what form the settlement might take and that he was reluctant to speak with Komlosi until the lawyers had resolved things. Dr. Booth then stated if the lawyers could work things out, he thought that there was the “possibility at this point, just a possibility of a temporary Rockland assignment” (Exhibit “8" to Komlosi Reply Affidavit). (Rockland County is where the Letchworth facility is located.)
On December 9, 1997, OMRDD counsel Wolfe returned Komlosi’s messages and Komlosi told him that he had not heard anything. Wolfe indicated that there may be a problem with respect to Letchworth’s willingness to offer a position, and explained that “each of our directors is an independent employment authority. While I can persuade, I can cajole . . . I can’t order them” (Exhibit “13” to Komlosi Reply Affidavit, 2). Wolfe suggested that if the director does not want to offer him a position, other options would be to look for a position at a different facility, or “go back and look at the settlement package” (id., 3) and suggests that Komlosi’s attorney should be included in the conversation. Komlosi asked if there are “second thoughts” and Wolfe replied that there were second thoughts, that “[t]he problem arose in terms of your employability. You know what I frankly hoped would happen was you would interview, the interview would go well, the director would say fine . . [but] it didn’t go well in the context that I did not get a green light to go ahead and put you on their payroll” (id., 4).
On December 18, 1997, Komlosi wrote to Dr. Booth, stating, in part, as follows:
I do recall the description of duties and the issues I would be facing. . . . I feel that I would be comfortable with the described duties as well as with the client population. You may recall that I have worked with identical population for ten plus years. I hope that our discussion and my inquiry as to alternatives was seen in the light of the events in the past and was not misunderstood in any way. (Exhibit “9” to Komlosi Reply Affidavit).
On December 31, 1997, Komlosi telephoned Jeffrey Kimma, the personnel director at Letchworth and stated, in part:
And ah, basically I would like to make a comment, my interview I think in my eyes went quite well. I expressed some information which was negative in my past because you know my history. . . . But basically I indicated that I was willing and I’m interested to work with patients, you know, and I hope I was not misunderstood because it was a long discussion we talked about different things but basically the bottom line is that I’m interested. (Exhibit “10” to Komlosi Reply Affidavit, 2).
Komlosi called Dr. Booth again on January 5, 1998 and was told they were still considering him for a position but waiting for the “go ahead” from counsel’s office (Exhibit “10" to Komlosi Reply Affidavit). On January 6, 1998, Komlosi telephoned Wolfe and they discussed the possibility of alternative positions. On January 9, 1998, Kimma telephoned Komlosi, stating that he had told him the prior week he would get back to him, and reiterating that OMRDD counsel was in a “negotiating situation” with Komlosi’s attorney.
On February 13, 1998, Komlosi telephoned Wolfe and stated:
OK, well, where we left last time, my attorney might have told you that it was not the clinical contact I was really trying to avoid and it was apparently misunderstood. You still can consider the regular clinical position and it’s really kind that you took this step. So basically, in sum, I have no problem in taking the clinical position. (Exhibit “15” to Komlosi Reply Affidavit).
Komlosi’s position in support of the application to add a cause of action for breach of contract to his claim and, more significantly, in opposition to defendant’s motion for summary judgment, is that these tapes
provide proof that defendant breached the settlement agreement, defrauded Fudenberg and breached its fiduciary obligation to Fudenberg. He argues that the tapes prove that he “survived” the employment interview, that the settlement agreement was “binding” on the state and that the instant claim, alleging intentional wrongdoing on the part of the state in 1997 and served and filed in 2003, is timely because it was interposed within 90 days of “claimant’s” (i.e., Fudenberg’s) discovery of the allegedly fraudulent conduct, which occurred when Komlosi’s attorney telephoned Fudenberg’s attorney and told him that “Komlosi had evidence that he survived the Letchworth job interview in October 1997" (Goidell Affirmation, par 12). All of claimant’s arguments are misplaced as none address what the court perceives as the determining issue on all of the pending motions; i.e., whether the three causes of action have “no merit” (CPLR 3212[b]).

Komlosi goes to great lengths to argue that the agreement reached before the federal magistrate in September 1997 was a binding settlement contract, notwithstanding the fact that the parties failed to reduce it to writing. The court has no problem with that proposition. Komlosi is correct in arguing that stipulations of settlement entered into on the record in open court are binding and enforceable. The problem lies in Komlosi’s misperception of what was agreed to.
The State of New York was not a party to the federal action, although it had an obvious interest because it was paying for the defendant’s (Fudenberg’s) representation and because it had potential liability, pursuant to the Public Officers Law, to pay any judgment against Fudenberg. For that reason, the state was invited to participate in the settlement discussions and in fact agreed to participate in the settlement of the action. What the state agreed to was to pay Komlosi $200,000.00 and to arrange for a job interview, bypassing certain civil service requirements. In the words of Komlosi’s counsel as he recited the terms of the agreement on the record, after correcting his statement that Komlosi would receive an “offer” to correctly state that what he would receive was an “interview,” “nobody else will be interviewing for the same position . . . [a]nd Mr. Komlosi will be – assuming he survives that interview, will be offered the next position that opens up at the Letchworth Facility at his grade level . . . it’s anticipated that the position will be a temporary position . . . subject to approval by the office of the Civil Service Department . . . [n]o other assurance is being given to Mr. Komlosi about the job or any permanency” (Exhibit “2” to Komlosi’s Reply Affidavit, 3-4). Komlosi was obviously concerned about what all of this meant, particularly “the issue of surviving the interview, that has to be clarified” and his counsel explained that “the interview will proceed on a good faith basis . . Mr. Komlosi will be given a fair chance at the interview” (id., 5). That is what was agreed to, that is what was “binding” on the state and that is what the state did. AAG Leong could not, in any event, have agreed to anything more since hiring decisions are at the discretion of the director of the facility. The record shows that the state arranged twice to move positions from one facility to another to accommodate the hiring of Komlosi and that he was in fact given a second interview, for a different type of position, after it developed that he was perhaps not a good fit for a psychologist position. Clearly, the state acted in good faith in making all of these efforts. Nevertheless, no representation was made that Komlosi would be offered a position and the fact that the contents of his interviews did not result in an offer was always an inherent possibility. In no way was it a breach of any contract.
Contrary to Komlosi’s contention, there is not one significant discrepancy between the recollections of OMRDD counsel and Dr. Wolfe and the telephone conversations that he recorded in 1997 and 1998 and discovered in 2003. Wolfe’s recollection was that Dr. Booth told him that Komlosi asked whether he would be required to work with mentally retarded clients. Komlosi’s recollection was that it was Dr. Booth who initially broached the subject. There is no disagreement that Dr. Booth perceived a reluctance on the part of Komlosi to work with such clients because of his past experiences. Komlosi obviously was aware of Dr. Booth’s concerns in this regard since he repeatedly went out of his way, following the interview, to call Dr. Booth and the Letchworth personnel director and OMRDD counsel, and to write to Dr. Booth, expressing the hope that his comments at the interview were not misunderstood. Quite apparently, Komlosi realized that he had said the wrong thing and he was concerned enough to think that it might prevent him being offered a job.
Komlosi’s alternative view of these events – that he in fact “survived” the interview because it went “well” and that Dr. Booth wanted to offer him a position but was prevented from doing so by OMRDD counsel – is not only belied by every piece of relevant evidence before the court but also defies logic. The state was under no obligation to make any offer of settlement and in fact participated in the settlement discussions on a voluntary basis. The sequence of events that occurred between September 1997 and March 1998 put the parties, and the state, in the exact position they were in before ; i.e., Komlosi’s action against Fudenberg proceeded to trial. What was there for the state to gain by transferring civil service lines, arranging for multiple interviews, etc. only to have it all come to naught? It was the legal people, not the medical people, who wanted to end the whole thing by having Komlosi offered a position. Unfortunately, after Komlosi’s interviews the medical people did not agree. The conversational statements to the effect that they needed to consult with counsel or that they were waiting for clearance from counsel are much more rationally explained as stemming from the need on the part of Dr. Booth and other OMRDD officials who were not attorneys to obtain clarification as to exactly what their obligations were under the settlement agreement. Komlosi’s argument – that it was the legal people who did not want to offer him the position and they who overruled the medical people – is without any support whatsoever.
The court finds that there was no breach of any fiduciary duty owed to Fudenberg, there was no breach of contract and there was no fraud. The state fully performed its obligations under the settlement agreement. Komlosi did not “survive” the interview and the causes of action are utterly without legal or factual merit.
Accordingly, the claimant’s motions are denied and the defendant’s cross- motion is granted, pursuant to CPLR 3212, without necessity of considering any of the alternate grounds for dismissal urged by defendant and without prejudice to whatever rights Fudenberg may have under the Public Officers Law.

June 30, 2005
White Plains, New York

Judge of the Court of Claims

[1]Komlosi states that he taped his phone conversations because he was “fundamentally distrustful of the State bureaucracy that ruined my career” and that he believed the interview at Letchworth had gone well and the “lack of response for several weeks heightened my distrust and indicated to me that the State might renege on its promise to reinstate me if I survived a good faith interview.” (Komlosi Reply Affidavit sworn to June 30, 2004, 5, fn 5).
[2]Although defendant styled its cross-motion as requesting dismissal of the claim and did not use the term “summary judgment,” the notice of motion requested dismissal pursuant to a number of provisions of the CPLR, including 3212, and the voluminous submissions from both parties set forth all of the relevant facts and evidence.