New York State Court of Claims

New York State Court of Claims

LERNER v. THE STATE OF NEW YORK, #2007-016-053, Claim No. None, Motion No. M-73739


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):

Alan C. Marin
Claimant’s attorney:
Barbara Lerner, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 30, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Barbara Lerner moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). Ms. Lerner’s proposed claim is for “breach of patients’ rights, civil rights, negligence, wrongful imprisonment, [and] other torts . . .” In order to determine this motion[1], six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2] Claimant did not address these factors in her motion papers. In an August 14, 2007 letter from the Court, she was offered the opportunity to make an additional submission to address them, but failed to do so.

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Ms. Lerner’s proposed claim for the most part alleges wrongs against her by persons and entities other than the State of New York, and to the extent that the State is mentioned, it is unclear how it is allegedly at fault. Accordingly, the State did not have notice of the claim or the opportunity to investigate, and would be prejudiced by the granting of this motion.

With regard to an alternate remedy, to the extent that actors other than the State have wronged claimant, her remedy would lie outside the jurisdiction of this Court. As to excuse, claimant has failed to indicate why she did not timely file a claim.

The remaining factor to be considered is whether the proposed claim appears meritorious. Ms. Lerner mentions Columbia Presbyterian Hospital and the New York State Psychiatric Hospital [Institute], but does not demonstrate in any way what the State did which would give rise to a valid cause of action. The proposed claim is insufficiently focused for the purposes of §11.b of the Act. An example of the lack of a legal basis for this lawsuit is the following, which is typical of Ms. Lerner’s submissions: “The real reason for the incarceration was to cover up the larger ‘Project Ali’ issue . . . and have this criminal torture/smear campaign being orchestrated by an individual with Army-affiliated by the name of Carlos Figueroa . . . who’s a multi-millionaires with a 2nd big country home, big car, etc . . .”[3]

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-73739 be denied.

November 30, 2007
New York, New York

Judge of the Court of Claims

  1. [1]In a letter dated August 7, 2007, Ms. Lerner requested that this motion “be transferred to a judge to be heard outside of New York City.” She has failed to provide any legal authority in support of such request.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]See p. 3 of the “Hospital Document” submitted with claimant’s moving papers.
  4. [4]The Court reviewed claimant’s notice of motion with proposed claim, affidavit in support and attached submissions entitled “Hospital Document” and “Re: ‘Project Ali’ (as of 3/09/07)”; claimant’s submission containing documents entitled “‘Project Ali’ ‘Update’ (as of 4/22/07),” “The ‘Project Ali’ Situation (Some Additional Notes - and Update - as of Approx. 6/24/07),” “Some Additional/Essential Points Culled from the ‘Update of Approx. 6/24/07' Document - Which Point to Proof of What I’ve Reported is Going On Regarding ‘Project Ali,’” and “‘Addendum’ (to Other Documents)”; defendant’s affirmation in opposition; and claimant’s cover letter and letter both dated August 7, 2007.