New York State Court of Claims

New York State Court of Claims

COLOMBO v. THE STATE OF NEW YORK, #2006-033-182, Claim No. 110708, Motion No. M-70699


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):

James J. Lack
Claimant’s attorney:
Rose Colombo, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Susan M. Connolly, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 16, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Rose Colombo (hereinafter “claimant”) against the State of New York for the alleged torts of Dr. Michael Schwartz of the University Hospital at Stony Brook, Stony Brook, NY. Dr. Schwartz was ordered by the Honorable Paul J. Baisley, Jr. to perform a psychiatric evaluation of claimant in 2001.

Previously, this Court granted defendant’s motion to dismiss the claim (Decision and Order M-70138 filed September 6, 2005). Claimant had submitted no opposition papers to defendant’s motion. Claimant moves this Court for an order to restore the claim[1].

Claimant’s excuse for not submitting papers is that she did not know she was required to respond. To this end, she blames the Court of Claims for not having a pro se staff attorney to assist her and other pro se litigants.

The Court does not accept this as a valid excuse. The Clerk’s Office of the Court of Claims is always available to everyone concerning procedural issues. For that matter, my staff is also available to answer questions concerning procedure. Claimant never called Chambers or the Clerk’s Office prior to the submission of the original motion to ask any procedural questions. If claimant is suggesting that someone should have reached out to her to advise her that she should submit opposition papers, then the Court does not agree with claimant. If the Court of Claims were to have a staff attorney who contacted litigants to advise them, then that attorney would be acting as an advocate for the litigant. Such a practice would deprive the Court of its unbiased position.

By her own admission, claimant is not new to the courts or the judicial process. Certainly, this Court believes that claimant knew that she would have the opportunity to respond to any papers submitted by her adversary.

In addition to claimant’s lack of excuse, the Court finds no merit to the underlying claim.

According to her motion, claimant is seeking the following relief through her claim: that claimant be granted access to her 1989 psychiatric evaluation performed by Dr. Schwartz; that she be granted access to the in camera conference between the Hon. Michael Mullen and Postal Inspector Hayes; and, that a special prosecutor and/or special master be assigned due to a custom and policy dating back to 1985 of depriving claimant of her civil rights. In addition to this relief, claimant asks for numerous other forms of equitable relief in her motion ranging from sanctions for judges and lawyers to vacatur of pleas she took in criminal court.

Defendant is sued under the theory of respondeat superior as Dr. Schwartz’ employer. The question of whether judicial immunity extends to Dr. Schwartz has already been decided. The Appellate Division, Second Department stated that Dr. Schwartz had judicial immunity (Colombo v Schwartz, 15 AD3d 522). Therefore, defendant, in the instant matter is covered by the doctrine of judicial immunity.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely, then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(3) states that the claim or notice of intention should be filed within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s office then claimant must serve and file his claim within two years of the date the claim accrued. In the event a claim is not timely filed, a person may seek permission pursuant to Court of Claims Act §10(6) to file a late claim. However, an application for a late claim must be made within the time limits set forth for suits between private individuals.

The date of Dr. Schwartz’ report was 2001. Any action claimant could conceive of is time barred. Claimant gives no dates as to the causes of action for the other matters for which she seeks relief. Any dates referenced by claimant are well beyond an applicable statute of limitations even if a valid cause of action existed.

The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, §7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, §7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.

(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const. Art. VI, §9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller, 40 AD2d 225).

The relief sought by claimant is equitable in nature. Assuming claimant had filed in a timely manner, the relief she seeks is beyond the jurisdiction of this Court.

Based on the foregoing, claimant’s motion to restore her claim is denied. The Clerk of the Court is directed to close the file.

March 16, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimant’s motion: Notice of Motion to Restore Claim dated September 13, 2005 and filed September 15, 2005; Affidavit of Rose Colombo with annexed Exhibits 1-9 sworn to September 13, 2005 and filed September 15, 2005; Affirmation of Susan M. Connolly, Esq. dated January 10, 2006 and filed January 12, 2006; Reply to Affirmation in Opposition of Rose Colombo with annexed Exhibits 1-4 sworn to January 18, 2006 and filed January 23, 2006.