New York State Court of Claims

New York State Court of Claims

COMMACK SELF-SERVICE KOSHER MEATS v. THE STATE OF NEW YORK, #2007-028-528, Claim No. 101565, Motion No. M-71810


A claim alleging that the State charged Claimants with violation of the Kosher food laws but then prevented them from challenging those charges and obtaining exoneration is dismissed. Claimants had opportunities to raise such a challenge but failed to pursue them.

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:
DINERSTEIN & LESSER, P.C.BY: Robert J. Dinerstein, Esq.
Defendant’s attorney:
BY: Michael W. Friedman, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Michael W. Friedman, AAG, with annexed Exhibits and Affidavit of Michael McCormick, Esq.;

2. Opposition of Robert Jay Dinerstein, Esq.; and

3. Reply Affirmation of Michael W. Friedman, AAG.

Filed papers: Claim; Answer; Decision and Order, Motion No. M-61509, Cross Motion No. CM-61749, October 12, 2000, Sise, J.

As set forth in the Decision and Order on a prior motion, Claimants (Claimant corporation and its owners) are in the business of selling kosher foods and, by this claim, challenge certain actions of the Kosher Law Enforcement Bureau (“the Bureau”), a bureau within the New York State Department of Agriculture & Markets (“the Department”). On several occasions, the Bureau charged Claimants with violations of various provisions of the Kosher laws but then subsequently withdrew the charges or rescinded the penalties so that, it is alleged, Claimants were unable to obtain exoneration, causing significant harm to their reputation and business.[1]

In March 1998, Claimants commenced an action which related to citations that had been issued by the Bureau in February 1993 and for which the penalty had been rescinded in June 1993. That action, Claim No. 97970, was dismissed on the ground that it was untimely, as any cause of action would have accrued in June 1993, when the charges were rescinded (Claim No. 97970, Motion No. M-58396, Dec. 18, 1998, McNamara, J.). That ruling was upheld on appeal (270 AD2d 687 [3d Dept 2000]).

The instant claim, Claim No. 101565, was filed in December 1999 and relates to a citation against Claimants issued on April 29, 1988. More than ten years later, in late 1999, the action was withdrawn by the Attorney General and discontinued by the District Court judge. In the earlier motion referenced above, this Court held that the claim was timely but, at the same time, expressed some reservations about the viability of the claim.

The relevant facts are as follows: The citation related to Claimants’ preparation of lamb’s tongue, issued on April 29, 1988, was followed by an action commenced by the Attorney General in December 1989, seeking to enforce the civil penalty associated with those charges. Apparently there was no activity in that action for almost ten years. In September 1999 Claimants brought a discovery motion to obtain information in preparation for deposing certain Bureau employees. In response to that motion, in a letter dated October 19, 1999, which was copied to Claimants’ counsel, the Attorney General informed District Court that the action was being withdrawn (Friedman Affirmation, Exhibit C). A stipulation, which was signed only by the Attorney General and not by Claimants, was submitted in November 1999, and on December 7, 1999, Judge Emily Pines issued an order discontinuing the action with prejudice and denying Claimant’s discovery motion as moot: “Plaintiff has indicated its desire to discontinue this action, and consequently this action is discontinued, with prejudice” (Friedman Affirmation, Exhibit B). It was against this background that the Court raised questions regarding the viability of Claimants’ cause of action:
While it was the Bureau’s decision that ultimately led to discontinuance of the underlying action, it could not unilaterally effect the discontinuance unless it served notice of that decision within twenty days after commencing the action (CPLR 3217[a]). Failing that, a discontinuance could be achieved only by stipulation of both parties (id.) or by Court order, with claimant having an opportunity to be heard (CPLR 3217[b]); Piazza Brothers, Inc. v Pound Ridge Board of Fire Commissioners, 230 AD2d 837; Giambrone v Giambrone, 140 AD2d 206). The State can be liable only for the actions of the Bureau; claimants cannot, of course, recover for damages that its own action, or inaction, caused; and the actions of the District Court Judge are protected by absolute immunity (Slavin v State of New York, 206 AD2d 651).
(Decision and Order, Motion No. M-61509, Cross Motion No. CM-61749, opn at 6-7, supra).

Defendant now moves for dismissal of the claim on the ground that Claimants have failed to assert a viable cause of action against the State of New York.

Despite some lingering confusion on the part of Claimants (see Dinerstein opposition, ¶¶ 2-3, 9-12) the nature of the cause of action being asserted in this claim is clear and was described in the earlier motion decision:
[C]laimants are charging that the wrongful conduct of the State which gives rise to this claim was not the Bureau’s filing charges against claimant corporation but, rather, its action in discontinuing the action to enforce the civil penalties arising from at least one of the charges. Claimants explain that “recision of a penalty does not rehabilitate an accused’s reputation” and that discontinuance of the enforcement action “thwart[s] the Claimants’ ability to obtain exoneration from the baseless charges.” Counsel for claimants further states that the instant claim “was precipitated by, and is predicated upon, the defendants’ deliberate frustration of claimants’ quest for exoneration.”
(Id. opn at 4- 5, supra [citations to the record omitted]). In other words, the injury for which Claimants seek compensation is the damage to its reputation and business caused when the Department discontinued the action against them, depriving Claimants of the opportunity to contest the charges that it had violated Kosher law and, if successful, to be exonerated. Claimants’ own counsel has expressed that clearly in the current submissions:
By abandoning the District Court Action the State attempted to deny the claimants a forum in which to seek vindication for the meritless lamb tongue violation as well as to deny the claimants a forum in which they could defend themselves by establishing that the State was engaged in a calculated and deliberate course of action to harass and injure the claimants.
(Dinerstein opposition, ¶ 32.)

The reservation expressed in the Court’s earlier decision was simply that if it was some action or inaction on the part of Claimants themselves that prevented the issue from being adjudicated, then Defendant could not be held liable. At certain places in Claimants’ submission on the instant motion, it appears that there is agreement on this point: “if the claimants had not taken affirmative action to thwart the discontinuance of the District Court Action the claimants would be the victims of their own inaction” (Dinerstein opposition ¶ 21).

There are very few facts presented in the parties’ submissions that relate to this critical issue. Michael McCormick, an attorney employed by the Department, states in an affidavit that the District Court action was withdrawn at the request of the Department “[b]ased upon the 11 year lapse” between April 1988 when the citation was issued and June 1999 when Claimants made their discovery demand in the enforcement action (McCormick Affidavit, ¶ 13). He also adds, upon information and belief, that when the Attorney General obtained the order discontinuing that action, “Claimants did not appeal from that order” (id. ¶ 14).

In Claimants’ submission, counsel asserts that his clients did not acquiesce to the discontinuance of the District Court action: “to the contrary, the claimants were seeking discovery in order to litigate the case when Judge Pines ignored the claimants’ position and granted the State’s letter request to deem the District Court Action moot” (Dinerstein opposition, ¶ 22). This statement does not accurately reflect the sequence of events. Claimants’ discovery motion came first, followed by Defendant’s withdrawal of the action in October 1999 and Judge Pines’ order in December 1999. Whether or not Claimants acquiesced in discontinuance of the action can be determined only by considering any actions they took after the State announced its intention to abandon the charges against them.

With respect to that later time period, counsel for Claimants states:
[C]laimants’ decision not to appeal from Judge Pines’ decision was not, by any measure, an abandonment of the claimants’ claim but, rather, that the claimants had affirmatively sought relief by initiating the then pending Special Proceeding, brought by the claimants in the Supreme Court, Suffolk County, Index No. 08793/00, seeking an order directing the State to afford the claimants a forum in which to establish that the claimants had not been guilty of any violation, including the Lamb Tongue Violation, of New York’s Kosher Laws; an opportunity for the claimants to obtain the due process to which they were entitled to refute the State’s records which, as a matter of public record, branded the claimants as unreliable in matters of kashruth.
(Id. ¶ 24.) According to counsel, this proceeding has been transferred to Supreme Court, Albany County and Claimants have not yet received confirmation of the transfer or the new index number (id. n 12).

In reviewing the facts of this case and the relevant law, the Court can only conclude that Claimants were not prevented from contesting the charges made against them and, thus, they were not, as they allege, robbed of the opportunity to be exonerated. Under any possible scenario, they could have challenged the discontinuance and, in doing so, to have the underlying merit of the charges against them, or their lack of merit, adjudicated.

If, as appears to be the case, Claimants were given notice of the State’s intention to withdraw the District Court action, they had an opportunity to argue that the action should not be discontinued. CPLR 3217 provides that, with certain exceptions not relevant here, an action can be discontinued only by a stipulation signed by all parties (subd. [a][2]) or by order of a court “upon terms and conditions, as the court deems proper” (subd. [b]). An application to discontinue is made on notice to all parties, and in reaching its decision, a court has broad discretion and its inquiry may consider any “prejudice that may accrue to others in, or even outside of, the litigation” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3217, C3217:12). A court’s ability to condition the discontinuance on such terms that it “deems proper” is equally broad (id.; C3217:12; Piazza Bros. v Pound Ridge Bd. of Fire Commrs., 230 AD2d 837 [2d Dept 1996]; Conte v Getty Petroleum Corp., 202 AD2d 621 [2d Dept 1994]), and permission to discontinue should be denied altogether if the adversary's rights would be prejudiced or substantial rights have accrued (see e.g. Giambrone v Giambrone, 140 AD2d 206 [1st Dept 1988]; Schneider v Schneider, 32 AD2d 630 [1st Dept 1969]).

In the event that the District Court judge discontinued the action, despite Claimants’ challenge, that decision could be appealed. There have been instances where a trial court’s decision to allow a discontinuance has been reversed (see e.g. White v County of Erie, 309 AD2d 1299 [4th Dept 2003]), and a party’s attempt to avoid an adverse ruling on the merits (which Claimants assert is the motivation here) has been recognized by appellate courts as a legitimate reason for a court to disapprove a discontinuance (Baltia Air Lines v CIBC Oppenheimer Corp., 273 AD2d 55 [1st Dept 2000], lv denied 95 NY2d 767, rearg denied 96 NY2d 755; NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [1st Dept 1997]).

Finally, if Claimants had not been aware of Defendant’s intention to withdraw the District Court action, their remedy would be to vacate the order of discontinuance.[2] Pursuant to CPLR 5015 (a)(1), a party may be relieved of a prior judgment or order on the ground of “excusable default,” and reasonable excuse for default exists if the party did not receive notice of the proceeding (Latha Restaurant Corp. v Tower Ins. Co., 285 AD2d 437 [1st Dept 2001]).

As Claimants themselves have recognized, if they took no affirmative action to thwart the discontinuance of the District Court action, then they would be “victims of their own inaction.” And that is, in fact, what occurred. Claimants did not attempt to block the discontinuance of the action against them, and they did not seek to reverse the discontinuance once it occurred, although they had the legal right and the ability to do either or both. Consequently, their cause of action, based on allegations that Defendant denied them a forum in which to seek vindication or exoneration of the charges against them, must fail.

Defendant’s motion is granted and Claim No. 101565 is dismissed.

March 2, 2007
Albany, New York

Judge of the Court of Claims

[1]. It should be noted that several years after this action was commenced, the statutes under which Claimants were charged, which required kosher food to adhere to “orthodox Hebrew religious requirements,” were held to be unconstitutional because they excessively entangled government and religion in violation of the Establishment Clause (Commack Self-Service Kosher Meats, Inc. v Weiss, 294 F3d 415 [2d Cir 2002]).
[2]. This is not likely to have been the case, since Claimants’ counsel was copied on the October 19, 1999 letter in which the Attorney General informed the District Court that it wished to withdraw the claim, and Claimants have not asserted that they lacked notice.