This is a claim by Tri-W Construction, LLC (hereinafter “claimant”)
for damages due to the alleged wrongful cancellation of an insurance policy by
defendant. The alleged wrongful termination occurred on June 5, 2003.
In April 2006, claimant moved this Court for permission to file a late claim.
This Court, by Decision and Order, granted claimant’s motion to serve and
file a late claim (M-71473). In the caption, claimant named the
“Commissioners of State Insurance Fund” as the defendant. As part
of the decision, the Court directed counsel to replace the named defendant with
“The State of New York”. The claim was filed on October 31, 2006.
Rather than naming the appropriate defendant, as ordered, counsel once again
named the “Commissioners of State Insurance Fund” as the only
Claimant’s counsel is not the first attorney to inadvertently name state
agencies in the caption. However, he is the first in my Court to fail to also
name the State of New York in addition to state agencies and/or individual
defendants. This Court has no jurisdiction over individuals or state agencies.
Routinely, this Court, at the preliminary conference, sua sponte
the caption to read the “State of New York” as the only
However, in this case, as noted,
no other defendant was named. It was discussed at the preliminary conference
whether or not this was a jurisdictional defect. My law secretary asked the
Assistant Attorney General if he would consent to the amendment of the caption
at the conference. The Assistant Attorney General declined to consent to the
amendment. The parties were sent from chambers with a routine discovery order.
In addition, my law secretary directed claimant’s counsel to examine the
question of naming the wrong defendant, including inquiring of the State if it
would change its position and consent to the substitution of parties.
Failing to convince defendant on consent, claimant now moves this Court to
amend the caption to substitute “The State of New York” for
“Commissioners of State Insurance Fund” as the
. Rather than simply move for the
amendment based upon his research and the lack of defendant’s consent,
claimant’s counsel, Adam Grossman, lashes out at members of the Attorney
General’s Office and my law secretary in his Affirmation in Support of his
instant motion, alleging that they are “thwarting justice” and that
he has researched his “remedies” against such public officials.
The Court is perplexed by Mr. Grossman’s use of the term “thwarting
justice”. Mr. Grossman brought a claim on behalf of his client and thus,
is an advocate for his client. The Attorney General’s Office has a duty
to defend the State of New York. The Assistant Attorneys General that appear
must act as advocates on behalf of their client. They have no duty to advocate
on behalf of claimant or to relieve counsel from the consequences of his
mistakes and/or wilful disregard of this Court’s prior order.
As to my law secretary, I would respectfully inform counsel for the claimant
that neither I nor my law secretary has a duty to bring his error to his
attention. I could have simply issued a discovery order and let Mr. Grossman
realize his mistake when the Attorney General’s Office moved to dismiss.
However, the reason my law secretary conducts preliminary conferences is,
specifically, to inform errant counsel about their mistakes so that they may be
timely cured, if possible. Mr. Grossman is further reminded that this was a
compound error since my prior decision clearly set forth the proper caption to
utilize in this proceeding.
The Court grants claimant’s motion to substitute “The State of New
York” for “Commissioners of State Insurance Fund” as the
defendant. Counsel is cautioned, for the sake of his client, to pay attention
to all future directives and orders of this Court. To make sure that justice is
not thwarted in the future with respect to this case, it is further ordered that
all subsequent conferences shall be held on the record.