New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2008-030-526, Claim No. 113645, Motion No. M-74759


State’s motion to amend answer to include counterclaim for the costs of services rendered to patient at Bronx Psychiatric Center granted. Such counterclaim allowed provided fees do not exceed the amount of any recovery by claimant, and that State not recover fees charged for those periods it was indeed negligent. Allowing counterclaim merely presents alternative to comptroller’s right of setoff. Claim alleges that patient was assaulted by fellow patient, due to defendant’s negligent failure to protect him, failure to supervise and failure to adequately train staff

Case Information

LEILA LYNCH and KEVIN LYNCH, as Co-Guardians of the person of RONALD LYNCH
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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 29, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s motion to amend its


1,2 Notice of Motion, Affirmation in Support by Cheryl Rameau, Assistant Attorney General, and attached exhibits

3,4 Filed papers: Claim, Answer

No Opposition

This claim arises from the alleged assault by a fellow patient of Ronald Lynch, while Mr. Lynch was a patient at the Bronx Psychiatric Center, on or about January 17, 2003. According to the Claim filed on May 3, 2007, claimants are the co-guardians of the person of Ronald Lynch. Among the theories of liability advanced is the alleged negligence of the facility in failing to protect Ronald Lynch from the assault, failing to supervise, and failing to adequately train staff. Damages in the amount of $7,000,000.00 are sought.

Defendant moves to amend its answer to correct the claim number indicated thereon, and to include a counterclaim. With regard to the application to correct the claim number, this clerical error has been corrected in any event without the necessity of motion practice.

With regard to the application to amend the answer, a pleading in the Court of Claims may be amended in accordance with the provisions of § 3025(b) of the Civil Practice Law and Rules. See 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency. A copy of the proposed amended pleading should generally be included, as well as any factual affidavits or exhibits that “. . . unequivocally make out a prima facie basis for the . . . matter now sought to be added . . . ” [Commentary C3025:11; § 3025 Civil Practice Law and Rules].

“A counterclaim may be any cause of action in favor of one or more defendants. . . against one or more plaintiffs . . . ” Civil Practice Law and Rules §3019(a). The test for its sufficiency is whether it can support an independent cause of action against the claimant in the same capacity in which the claimant sued.

A copy of the proposed pleading has been appended as required. [See Affirmation in Support by Cheryl Rameau, Assistant Attorney General, Exhibit D]. The proposed counterclaim is for the costs of services rendered to Ronald Lynch while a patient at Bronx Psychiatric Center, as evidenced in a statement of charges up through December 31, 2007 in the total amount of $1,585,519.22, verified by Maureen Frazier, Deputy Treasurer, on February 21, 2008. [See Affirmation in Support by Cheryl Rameau, Assistant Attorney General, Exhibit C]. Mental Hygiene Law §§ 43.01 and 43.03 require the Commissioner of Mental Health to establish fees for services provided by the agency, and liability for these fees is imposed on the patient[1] - or at least calculated - regardless of the ability to pay.[2] Various procedures to collect these fees are set forth in the statute. See Mental Hygiene Law §43.07. Since it is the State Comptroller who ultimately must audit all vouchers for payment, his constitutional and statutory authority has been construed to include the use of setoff for the purposes of collecting such fees. Matter of Carlon v Regan, 98 AD2d 544, 546 (3d Dept 1984), affd as mod 63 NY2d 1011(1984); Matter of Odom v McCall, 268 AD2d 704 (3d Dept 2000); NY Constitution, Article 5, §1; State Finance Law §8.

Under current State law, it appears that the State may seek payment for services provided by the Office of Mental Health in the context of a counterclaim in negligence or malpractice actions brought by the patient against the State of New York, provided such fees do not exceed the amount of any recovery by claimant, and that the State does not recover fees charged for those periods it was indeed negligent. See Langevin v State of New York, 196 Misc 2d 809 (Ct Cl 2003); Genao v State of New York, 178 Misc 2d 512, 519 (Ct Cl 1998), see also Rivera v State of New York, UID # 2006-033-202, Claim No. 109438, Motion No. M-71611 (Lack, J., September 27, 2006); Burch v State of New York, UID # 2003-031-100, Claim No. 96119, Motion No. M-66726 (Minarik, J., December 8, 2003); Brahinsky v State of New York, UID # 2002-016-069, Claim No. 102555, Motion Nos. M-64576, CM-64834 (Marin, J., June 28, 2002).

Such practice has not always been, however, uniformly approved [see Brown v Stone, 66 F Supp 2d 412 (ED NY 1999); Acevedo v Surles, 778 F Supp 179 (SD NY 1991)], with the federal courts finding that interposing such a counterclaim that assesses astronomical service charges-in-full against an indigent claimant creates a chilling effect on those who would seek to sue the State. In reaction to the holding in Acevedo v Surles, supra, the Office of Mental Health then modified its approach and
“. . . renounced its verified claim and setoff practice when sued in the Court of Claims, and limited itself to interposing a counterclaim in a sum not to exceed the amount of a plaintiff’s recovery. Nevertheless, in Siegel v. Surles, Index No. 405319/93, slip op. (N.Y.Sup.Ct., N.Y.County, Mar. 20, 1995), aff’d without opinion, 239 A.D.2d 115...(1st Dep't 1997), appeal dismissed, 91 N.Y.2d 804 . . . (1997), . . . plaintiffs, challenged the constitutionality of this new policy. Preliminarily, the State Supreme Court rejected a res judicata and collateral estoppel challenge by OMH because it read the court’s constitutional findings in Acevedo ‘to be restricted to the OMH policy of serving verified claims and not counterclaims.’ Siegel, slip op., at 10-11. In addition, it noted that a post-judgment stipulation in Acevedo provided that the judgment in that case ‘did not preclude challenges to any future practice or filing of counterclaims not addressed therein

. . . ’ Id. at 11.

Addressing the merits, the court in Siegel had little difficulty disposing of the plaintiffs’ constitutional challenges to OMH’s new policy. Rejecting plaintiffs’ Equal Protection claim, the court believed that the assertion of counterclaims placed plaintiffs on the same conceptual footing as those who receive inheritances or are entitled to Social Security benefits. In regard to the First Amendment, the court concluded that OMH’s counterclaim practice sufficiently thawed any constitutional chill because it only sought payment for sums which would never exceed a plaintiff’s recovery. Moreover, the counterclaim could not be perceived as a disincentive by OMH employees to safeguard the rights of the State’s mental patients in light of the spate of statutory and regulatory provisions mandating the monitoring, reporting, investigation and prosecution of incidents of patient abuse and neglect at OMH facilities. As for due process, the court agreed with Acevedo that affording a plaintiff the opportunity to challenge the legitimacy of OMH’s charges in the course of the lawsuit clearly satisfied predeprivation due process concerns. Finally, the court rejected a new claim–‘that as a matter of public policy, awards obtained as a result of tortious conduct by the OMH or its employees are exempt from care and treatment charges,’ Siegel, slip op., at 14– concluding in that regard that ‘if the Court of Claims were to grant an award to a claimant upon finding OMH negligent on any particular day(s), that should not nullify OHM’s claim for charges for all other days on which OMH was not negligent.’ Id. at 14-15. The subsequent summary affirmance of the State Supreme Court’s judgment of dismissal by the Appellate Division, and dismissal of the appeal thereafter by the Court of Appeals, ended the Siegel litigation.” Brown v Stone, supra at 420-421.

The federal court in Brown v Stone, supra, at 443, then concluded that

“In respect to the First and Second Causes of Action, the Court does not reach the issue of the constitutionality of OMH’s alleged practice of assessing full care and treatment charges in conjunction with the mechanism of a counterclaim up to the full amount of damages sought against it in Court of Claims lawsuits by patients or ex-patients for alleged tortious conduct by OMH employees, because the Court declares that such a counterclaim is contingent on the success of the lawsuits and, as a matter of State law, contingent counterclaims are proscribed . . .”

Nonetheless, the State court interpretations in the Court of Claims cases set forth above - particularly in Langevin v State of New York, supra - as well as the discussion quoted above from Siegel v Surles, supra, all support the interpretation that the defendant may assert such a counterclaim, subject to the limitations noted. See also Burch v State of New York, supra.[3] Allowing the asserted counterclaim to go forward merely presents an alternative to the comptroller’s right to setoff with respect to any judgment procured in any event.

Finally, the Court of Appeals confirmed that the statutory scheme of the Mental Hygiene Law allowed for the State to obtain a judgment against even an indigent defendant, in a case where the State initiated suit against a patient at a psychiatric center for the cost of the patient’s care and treatment. State of New York v Patricia II, 6 NY3d 160 (2006).

The claim for fees for services appears to have merit, and there is no prejudice to the orderly prosecution and defense of the matter. Based on the foregoing, the defendant’s unopposed motion to amend its answer to include a counterclaim is hereby granted. Civil Practice Law and Rules §3025(b). Defendant shall serve and file the amended answer within thirty (30) days of the filing date of this decision and order.

May 29, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Mental Hygiene Law §43.03(a) provides in pertinent part that “[t]he patient, his estate, his spouse, his parents or his legal guardian if he is under twenty-one years of age, and his committee and any fiduciary or representative payee holding assets for him or on his behalf are jointly and severally liable for the fees for services rendered to the patient . . .” see also Social Services Law §104 (concerning recovery from a person discovered to have property) and Social Services Law §104-b (concerning liens for public assistance and care on claims and suits for personal injuries).
[2]. The federal courts have “. . . inexplicably equated fixing fees (accrual) with collection of fees . . .” and there is no requirement that the State demonstrate a patient’s ability to pay before fixing the amount. Burch v State of New York, supra, discussing Brown v Stone, 66 F Supp 2d 412 (ED NY 1999).
[3].“I find no support for this interpretation and I note that Brown v Stone (id.) is the only case to have interpreted the Mental Hygiene Law in this manner. It is clear that, at least with regard to fixing fees, the Mental Hygiene Law does not distinguish between patients who are able and those who are not able to pay” when liability for the services is fixed. Burch v State of New York, supra.