New York State Court of Claims

New York State Court of Claims

DuPont v. STATE OF NEW YORK, #2009-018-049, Claim No. 108040, Motion No. M-77059


Synopsis


Defendant brought a motion seeking an Order suspending accrual of interest as of April 30, 2009 on a Judgment dated and entered December 4, 2008. Based upon the statute (Court of Claims Act § 20 [7] [a]), interest is suspended from thirty days after the date the Attorney General sent the Certificate of No Appeal until March 9, 2009, and then from thirty days after the date the Waiver of Attorney’s Lien and Satisfaction of Judgment were sent to Claimant until these items were returned to and received by the Comptroller’s Office. Since these dates were not provided by counsel, the specific time frame cannot be determined by the Court. Defendant’s motion is GRANTED only as set forth herein, the specific time frame for suspension of interest to be set forth by subsequent Order of this Court upon Defendant submitting the affidavits of service for the dates of mailing of the Certificate of No Appeal and the Waiver of Attorney’s Lien and Satisfaction of Judgment to Claimant’s counsel.

Case Information

UID:
2009-018-049
Claimant(s):
KAYLA DuPONT, an Infant Under the Age of Ten Years, by and through MARY and MICHAEL T. DuPONT, her Parents and Natural Guardians
Claimant short name:
DuPont
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108040
Motion number(s):
M-77059
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER, WEINSTOCK & DODIG
By: Daniel S. Weinstock, Esquire

BOTTAR LEONE, PLLCBy: Edward S. Leone, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 20, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brought a motion seeking an Order suspending accrual of interest as of April 30, 2009 on a Judgment dated and entered December 4, 2008. Claimant opposes the motion. The Judgment on this claim is the result of a lengthy trial in which Defendant was found 100 percent liable for the damages sustained by the Infant Claimant due to Defendant’s medical malpractice with a total award of $14,833,811. A Stipulated Order Directing 50-A Judgment was filed on November 24, 2008. Defendant issued a Certificate of No Appeal on January 6, 2009. The Judgment and Certificate of No Appeal were received by the State Comptroller’s Office on March 9, 2009. The Comptroller sent a letter dated March 24, 2009 to Claimant’s counsel advising of the need for certain documents and information before payment of the Judgment could be issued. One of the items required to be provided to the Comptroller was an Order Appointing a Guardian of the Infant Claimant’s Property. An Order Appointing a Guardian of the Infant Claimant’s Property was specifically required pursuant to the Judgment and the Order Directing 50-A Judgment. The Comptroller also required in its letter a Waiver of Attorney’s Lien and signed Satisfaction of Judgment.

Since the entry of the Judgment, Claimant’s counsel has been attempting to negotiate a lump-sum payment of the Judgment pursuant to CPLR 5036. Claimant’s counsel did not commence a Surrogate’s Court proceeding for Appointment of a Guardian of the Property until some time in July 2009. Defendant has interposed some objections to the petition.

Defendant contends that as of April 30, 2009, it should not bear the burden of paying for the accrual of Post-Judgment interest on a Judgment on which it is ready to tender payment subject to receipt of the Appointment of a Guardian of the Infant Claimant’s Property. Defendant maintains that the only reason the Judgment has not been paid is because of Claimant’s dilatory conduct.

It is Claimant’s position that Love v State of New York, 78 NY2d 540, precludes consideration of fault and prescribes that interest is simply “the cost of having the use of another person’s money for a specified period.” (Love, 78 NY2d at 544). Moreover, Claimant argues that it did not delay; rather, the months that passed were the result of the State’s failure to communicate regarding Claimant’s settlement proposal.

In Love, the Court of Appeals determined that Claimant is entitled to Pre-Judgment interest in a bifurcated proceeding from the date of the liability Decision until entry of Judgment regardless of the responsibility for any delay between the liability Decision and the Judgment on damages. A distinction is made, however, between Pre and Post-Judgment interest.

This matter involves Post-Judgment interest. For this issue, we must look to § 20(7) of the Court of Claims Act, which provides that interest shall accrue from the date of Judgment “until payment is actually made” except in two circumstances, when a Certificate of No Appeal is not sent to the Comptroller by Claimant within thirty days of mailing by the Attorney General, or when a Satisfaction of Judgment and Waiver of Attorney’s Lien is not received by the Comptroller within thirty days of the date of mailing of those documents to Claimant’s counsel by the Attorney General.

From Defendant’s submissions, Defendant sent the Certificate of No Appeal No. 25333 by letter dated January 6, 2009 to Claimant’s counsel (see Exhibit E). On March 5, 2009, Claimant forwarded a certified copy of the Judgment and a certified copy of the Certificate of No Appeal to the Comptroller’s Office (see Exhibit F). The Comptroller received those documents on March 9, 2009 (see Exhibit G). By letter to Claimant’s counsel dated March 24, 2009, from Colin M. Campbell, Senior Budgeting Analyst from the Office of the New York State Comptroller, the Waiver of Attorney’s Lien and Satisfaction of Judgment forms were forwarded to Claimant’s counsel. There is no indication if or when these documents were returned to the Comptroller.

Based upon the statute (Court of Claims Act § 20 [7] [a]), interest is suspended from thirty days after the date the Attorney General sent the Certificate of No Appeal until March 9, 2009, and then from thirty days after the date the Waiver of Attorney’s Lien and Satisfaction of Judgment were sent to Claimant until these items were returned to and received by the Comptroller’s Office. Since these dates were not provided by counsel, the specific time frame cannot be determined by the Court.

Any further suspension of interest sought by Defendant is unwarranted under the circumstances and not authorized by statute. Although CPLR 5003, which is similar to Court of Claims Act § 20 (7), provides that interest shall accrue on a Judgment or Order from the date of entry or docketing, other Courts have found that interest can be suspended for inequitable or dilatory conduct (see Bankers Trust Co. of California, N.A. v Brunson, 40 AD3d 672; Matter of Matra Building Corp. v Kucker, 19 AD3d 496; Matter of the City of New York, 17 Misc 3d 715, 720). In this case, even if the Court could consider suspension of Post-Judgment interest, beyond the statutory perimeters in the Court of Claims Act (see Matter of O’Shea v State of New York Office of the Comptroller, 281 AD2d 774), these circumstances do not warrant such relief.

Accordingly, Defendant’s motion is GRANTED only as set forth herein, in accordance with Court of Claims Act § 20 (7), the specific time frame for suspension of interest to be set forth by subsequent Order of this Court upon Defendant submitting the affidavits of service for the dates of mailing of the Certificate of No Appeal and the Waiver of Attorney’s Lien and Satisfaction of Judgment to Claimant’s counsel. Defendant should also submit by affidavit the dates the Comptroller received the Waiver of Attorney’s Lien and Satisfaction of Judgment from Claimant’s counsel.


October 20, 2009
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support with exhibits attached thereto.

3. Attorney’s Affirmation in Opposition to Motion, by Daniel S. Weinstock, Esquire.