New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2009-015-150, Claim No. 111068, Motion No. M-75913


Pro se inmate's motion for sanctions was denied and the claimant was cautioned that one making a frivolous motion for sanctions may be sanctioned.

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:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate pro se, moves for the imposition of sanctions against the defendant for frivolous conduct pursuant to 22 NYCRR § 130-1.1. Claimant's request for sanctions is premised upon the alleged frivolous conduct of the defendant in cross-moving to dismiss the instant claim for improper service (CM-72335). Although the claim was not served in accordance with the requirements of Court of Claims Act § 11 (a) (i), the Court denied the cross-motion, finding the defendant was estopped from denying proper service because the proof established that the actions or inactions of its employees prevented service by certified mail, return receipt requested. In so holding, this Court acknowledged in its Decision and Order the conflicting authority regarding the application of estoppel to governmental entities but concluded that the rule set forth in Wattley v State of New York, 146 Misc 2d 968 [1990], which was cited with approval by the Appellate Division, Third Department, in Rivera v State of New York (5 AD3d 881 [2004]) permitted its application under the circumstances of this case. It was abundantly clear from the decision, however, that the case law on the subject was unclear (compare Rodriguez v State of New York, 307 AD2d 657 [2003] and Rivera v State of New York, supra) and judges of the Court of Claims were divided. Under these circumstances the cross-motion by the defendant could not be considered frivolous.

Under the statute authorizing the imposition of sanctions, conduct is frivolous if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (22 NYCRR §§ 130-1.1 [c]; 206.20). Under no view of the circumstances could the defendant's cross-motion be considered frivolous. Notably, however, the rule which authorizes the imposition of sanctions for frivolous conduct also provides that "[f]rivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section" (22 NYCRR § 130-1.1 [c] [3]). Claimant is cautioned that motions such as this may warrant the imposition of sanctions in the future.

Based on the foregoing, claimant's motion is denied.

March 23, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 20, 2008;
  2. Affidavit of Edwin Lamage sworn to November 20, 2008;
  3. Affirmation of Thomas R. Monjeau dated December 17, 2008;
  4. Reply of Edwin Lamage dated December 23, 2008 with exhibit.