New York State Court of Claims

New York State Court of Claims

103701 v. THE STATE OF NEW YORK, #2006-028-535, Claim No. 103701, Motion No. M-70961


Defendant is not entitled to a lien representing the costs incurred when transporting witnesses to trial at which the plaintiff defaulted.

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:
LACY BAKER, pro se
Defendant’s attorney:
BY: Kevan J. Acton, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion to impose an administrative lien to recover costs incurred in producing witnesses for trial:

1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, AAG, with annexed Exhibits

2. Affidavit in Opposition (none received)

Filed papers: Claim; Answer

On October 25, 2005, Claimant, Lacy Baker, failed to appear for trial of Claim No. 103701. Defendant moved for dismissal of the action, with prejudice, but reserved the right to bring a motion to recover costs incurred in producing witnesses for the trial. The Court granted the motion to dismiss but stayed proceedings to allow Defendant to bring such motion.

Defendant thereafter commenced Motion No. M-70961, seeking an administrative lien in the amount of $886.07 “which must be satisfied before Lacey (sic) Baker can commence any future action in the New York Court of Claims.” The amount of the proposed lien is said to reflect the expenses incurred by Defendant in producing certain Correction Officers as witnesses on the day of trial. Included in that amount was pay for a Correction Officer who was scheduled to be off duty on the day in question; overtime pay for extra workers who had to cover for other Correction Officer witnesses who were on duty that day; overtime meal amount for the off-duty officer; and mileage reimbursement (Letter of Donna M. Deitz, attached to Acton Affirmation).

Defense counsel acknowledges that in most instances the Court of Claims does not allow for taxing of costs and disbursements (Court of Claims Act § 27)[1] but nevertheless urges the Court to “exercise its discretion with respect to the sums incurred by the State in the defense of this claim in order to provide a form of financial relief to the taxpayers who have to pay these sums” (Acton Affirmation, ¶ 11).

Counsel cites to no authority that would authorize such an exercise of discretion, nor is the Court aware of any such authority, certainly none that would override the prohibition of Court of Claims Act § 27.
The purpose of awarding costs is to reimburse a party, at least to some extent, for the expenses that a party must assume because of the failure, neglect, or refusal of an adversary to deal justly, and to discourage litigation. Additionally, the court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from "frivolous conduct" as that term is defined in the statute. The court, however, may not award costs as a gratuity or payment for an inconvenience sustained.
(NYJUR COSTS § 1 Nature and purpose of costs [emphasis added]; see also 22 NYCRR 130-1.1 [Awards of Costs and Imposition of Financial Sanctions for Frivolous Conduct in Civil Litigation]). Similarly, Defendant has presented no authority or precedent on which the Court could rely to cut off a litigant’s access to the courts merely because of a default.

Defendant’s motion for an administrative lien is DENIED.

On the other hand, Defendant’s motion, made at trial, to dismiss the claim with prejudice because of that default is now GRANTED, and the Chief Clerk is directed to enter judgment in favor of Defendant, dismissing Claim No. 103701.

Let judgment be entered accordingly.

April 4, 2006
Albany, New York

Judge of the Court of Claims

[1]. This statute reads: “Except as provided in section 701 of the [EDPL] and sections 3126 and 8303-a of the [CPLR], costs, witnesses’ fees and disbursements shall not be taxed, nor shall counsel or attorney’s fees be allowed by the court to any party.” EDPL §701 authorizes an award of actual and necessary costs, disbursements, and expenses incurred by a landowner who has been successful in litigating an appropriation claim; CPLR 3126 deals with penalties for refusal to comply with an order or to disclose; and CPLR 8303-a provides for costs in frivolous claims and counterclaims.