New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-033-202, Claim No. 109438, Motion No. M-71611


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:
Ferro, Kuba, Mangano, Sklyar, Gacovino
& Lake, P.C.By: Jennifer Lutzer, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by George Rivera (hereinafter “claimant”) for the alleged negligence of the State of New York. Claimant slipped and fell on ice on January 7, 2003, at the Pilgrim Psychiatric Center (hereinafter “Pilgrim”), Brentwood, New York.

The matter was scheduled for a bifurcated trial to be held on July 27, 2006, on the question of liability. The trial was adjourned pending this motion.

Defendant moves this Court for permission to file an amended answer[1]. Defendant seeks to include a counterclaim for the cost of services provided to claimant while he has been an in-patient.

Claimant opposes the motion, arguing that he was committed to Pilgrim pursuant to Criminal Procedure Law §730 and thus, is not responsible for the cost of services provided to him.

While claimant was originally sent to Pilgrim pursuant to CPL §730, his status was converted to an involuntary civil commitment five days after being sent to Pilgrim (Exhibit B of defendant’s reply papers). Claimant was sent to Pilgrim by the criminal court on January 29, 2001. This was converted to an involuntary civil commitment on February 2, 2001. As such, claimant is responsible for the services provided to him, pursuant to Mental Hygiene Law §43.03, beginning February 2, 2001.

Permission to amend pleadings shall be freely given, absent prejudice or surprise resulting from the delay (McCaskey,Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755). In the instant matter defendant seeks to assert a counterclaim for the value of the services provided to claimant. Claimant has been hospitalized since January 29, 2001. There have been numerous orders of retention extending claimant’s involuntary commitment. Certainly, there is no surprise that the State has a claim for the value of claimant’s hospitalization. Nor is there any prejudice to claimant. If defendant failed to assert the counterclaim, the comptroller would have a duty and a right to set off any judgment in favor of the claimant by any debt owed to the State, even if it is unrelated to the basis of claimant’s recovery (Chiosie v State of New York, Claim No. 82166, M-45749).

Based on the foregoing, defendant’s motion to amend the answer to include a counterclaim is granted. Defendant shall serve and file the Amended Answer within forty-five (45) days of the filing date of the Decision and Order herein.

September 27, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Amend Answer dated April 21, 2006 and filed April 24, 2006; Affirmation in Support of Todd A. Schall, Esq. with annexed Exhibits A-D dated April 21, 2006 and filed April 24, 2006; Affirmation in Opposition to Motion to Amend Answer of Jennifer Lutzer, Esq. dated May 3, 2006 and filed May 8, 2006; Reply Affirmation in Further Support of Motion of Todd A. Schall, Esq. with annexed Exhibits A-B dated May 23, 2006 and filed May 25, 2006.