New York State Court of Claims

New York State Court of Claims

TRI-W v. COMMISSIONERS OF STATE INSURANCE FUND, #2007-033-248, Claim No. 112953, Motion No. M-73006


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:
Adam B. Grossman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 6, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 defendant.

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 amends the caption to read the “State of New York” as the only defendant.[1] 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 defendant[2]. 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.

June 6, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].The preliminary conference, to establish parameters for discovery, is always conducted solely by my law secretary in order that he may explain to litigants unfamiliar with the procedures of the Court of Claims, the manner by which to conduct discovery and trial in this Court. Therefore, the basis of my knowledge of what took place at the preliminary conference is a conversation between myself and my law secretary.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion to Amend Caption or File Amended Claim With Amended Caption dated February 28, 2007 and filed March 1, 2007; Affirmation in Support of Motion to Amend Caption or File Amended Claim With Amended Caption of Adam B. Grossman, Esq. dated February 27, 2007 and filed March 1, 2007; Affidavit in Support of Motion to Amend Caption or File Amended Claim with Amended Caption of David Wright sworn to February 28, 2007 and filed March 1, 2007; Memorandum of Law in Support of Claimant’s Motion to Amend Caption or File Amended Claim With Amended Caption with annexed Exhibits A-E dated February 27, 2007 and received March 1, 2007; Affirmation in Opposition of John L. Belford, IV, Esq. dated March 21, 2007 and filed March 26, 2007.