New York State Court of Claims

New York State Court of Claims

DYSTANT v. THE STATE OF NEW YORK, #2009-030-521, Claim No. 108482, Motion No. M-76164


Motion by inmate claimant to vacate prior judgment of dismissal granted and claim restored. The correctional facility did not process legitimate requests for postal service, and for court ordered witness fees, all substantiated in documentary evidence. This failure constitutes the kind of misconduct by an adverse party which necessitates vacating the judgment of dismissal, and does not require claimant to establish underlying merit as urged by defendant. Civil Practice Law and Rules §5015(a)(3).

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 3, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered[1] on claimant’s motion for an order

vacating this courts prior judgment of dismissal:

1,2 Notice of Motion for Relief from Judgment per N.Y. C.P.L.R. §5015; Affidavit in Support of Motion for Relief from Judgment per N.Y. C.P.L.R. §5015 by Robert Dystant, claimant and attached papers

  1. Affirmation in Opposition by Barry Kaufman, Assistant Attorney General and attached exhibits
4-6 Filed papers: Claim, Answer, Dystant v State of New York, UID # 2007-030-517, Claim No. 108482, Motion No. M-72447 (March 9, 2007, Scuccimarra, J)

Robert Dystant alleges in claim number 108482, filed on November 3, 2003, that defendant’s agents failed to provide him with adequate medical care while he was an inmate in the custody of the New York State Department of Correctional Services [DOCS]. Specifically, he alleged that he did not receive adequate surgical treatment for his “abnormal bone- structure” in his left foot and/or the surgery - a bunionectomy - was badly performed; and received inadequate medical care thereafter necessitating further surgery. He asserted he suffers from a “dropped toe” in that he cannot lift the big toe on his left foot or put pressure on the toe, foot and leg, continues to have “the abnormal bone structure that should have been removed”; and is the “victim of unnecessary pain and suffering”as a result. [Claim Number 108482, ¶¶ 6-20].

Claimant - still incarcerated and proceeding pro se - now moves to vacate and set aside the judgment of dismissal and for a new trial in the interest of justice, premised upon newly discovered evidence and excusable default, and more particularly based upon the “misrepresentation or misconduct of an adverse party.” [See Notice of Motion for Relief from Judgment by Robert Dystant].

By way of background, trial of the matter was originally scheduled for September 29, 2006, but adjourned at claimant’s request to afford him an opportunity to obtain subpoenas for witnesses by motion as had been suggested to him by the court in prior correspondence. Claimant’s motion for the issuance of subpoenas directed to Dr. Andrew Shapiro, a podiatrist who treated claimant, and Dr. Hari Chakavorty, his treating physician at Green Haven Correctional Facility, [Green Haven] was granted. Dystant v State of New York, UID # 2007-030-517, Claim No. 108482, Motion No. M-72447 (March 9, 2007, Scuccimarra, J).

Thereafter, by letter dated April 26, 2007, trial of the matter was scheduled for Friday, July 20, 2007. In a letter dated May 10, 2007 received in chambers on May 14, 2007, claimant enclosed proposed subpoenas for the court’s signature. The subpoenas were executed and returned to claimant on the same day. The physician witnesses appeared on the scheduled trial date of July 20, 2007.

Given the problems he had after receipt of the executed subpoenas with getting monies deducted from his inmate account, on the scheduled trial day claimant indicated he could not proceed because he “did not realize the witnesses would actually appear”[2] until two (2) days before trial. The only reason he discovered they actually would appear, he said, was that counsel for the defendant - as a courtesy to the court[3] - confirmed with the witness under his control and the other witness that they were appearing in a writing dated July 17, 2007 copied to the court and claimant. Mr. Dystant said he had spent so much time on “internal facility” processes trying to get his subpoenas served with a statutory witness fee (including the filing and resolution of grievances concerning the processing of the mail and the fees), that he was not prepared, and now did not have all his paperwork.

Interestingly, the court ordered direction that claimant serve the subpoenas with the statutory witness fee provided for in Civil Practice Law and Rules §8001 [see Dystant v State of New York, UID # 2007-030-517, Claim No. 108482, Motion No. M-72447 (March 9, 2007, Scuccimarra, J)], because of an employee manual provision [2.14] prohibiting gifts by inmates to employees, became the subject of the grievance process, when the facility would not allow deduction from the inmate account for that purpose. The July 13, 2007[4] decision from the Superintendent on claimant’s grievance indicated that claimant would need to submit certain forms before the disbursements would be processed (presumably forms that contained an approval by the commissioner, superintendent or acting superintendent as apparently required by the employee manual provision). [See Affidavit in Support of Motion for Relief from Judgment by Robert Dystant, Exhibit F]. The Central Office Review Committee [CORC] issued its decision on claimant’s appeal from the Superintendent on August 22, 2007, indicating that disbursements for statutory witness fees should be processed by the business office, but that the employees could not retain the monies unless they were not seeking reimbursement for travel/mileage expenses. [Affirmation in Opposition by Barry Kaufman, Exhibit 2]. In theory, then, whatever issue the facility had with facilitating the court’s direction to claimant concerning witness fees was resolved as of the CORC decision of August 22, 2007.

In any event, on July 20, 2007 the court had not been fully apprized of the difficulties presented by its witness fee order, and noted on the record that the witnesses came prepared to

testify in the morning, and sat through the trial term until this case was called. Over objection, claimant was again granted an adjournment with the proviso that if he was not prepared to proceed to trial at the next adjourned date, upon application by defendant the claim would likely be dismissed. It was determined on the record that the witnesses would not be required to appear at any adjourned trial date unless they received a subpoena and an appropriate witness fee, based upon the fact that each had appeared despite not having been tendered a witness fee, taken time away from - in Dr. Shapiro’s case - his private practice and, in Dr. Charkavorty’s case, patients at his assigned correctional facility, to give testimony.

By letter dated October 4, 2007 the trial was re-scheduled for November 30, 2007. In a letter dated October 19, 2007, received in chambers on October 23, 2007, claimant submitted proposed subpoenas, which were executed and returned to claimant the following day.

On October 29, 2007 claimant “issued disbursement forms authorizing statutory payments to obtain the witnesses at trial.” [See Affidavit in Support of Motion for Relief from Judgment by Robert Dystant, ¶18].

In a letter received by the court on November 9, 2007, dated November 7, 2007, claimant wrote he was being transferred from Green Haven to Woodbourne Correctional Facility [Woodbourne]. After his transfer to Woodbourne, claimant indicates that he submitted a FOIL request on November 11, 2007 to Green Haven to obtain “copies of certified mail and disbursement form receipts pertaining to the October 29, 2007 issuance of claimant’s disbursement requests.” [Ibid. ¶19, Exhibit I]. He did not receive a response relative to the FOIL

request until January 10, 2008. [Id.]. He further writes that Woodbourne personnel confirmed on November 21, 2007 that deductions had been taken from his inmate accounts, and was “therefore under the belief that the subpoenas were also forwarded to the doctors and the matter was resolved.” [Ibid. ¶20, Exhibit J].

By letter to the court dated November 27, 2007 the assistant attorney general wrote that he had contacted the physician witnesses, and learned that they had not been served with the subpoenas and fees, and did not intend to appear. [Ibid. ¶21, Exhibit K].

On November 30, 2007 claimant appeared, indicated that he had just learned by copy of the letter from the assistant attorney general to the court (“received at 9:00 p.m. the night before”) that the physicians would not be appearing, and said he needed to search further to establish that he had served the subpoenas and the fees directed, and to further prepare his claim. He requested an adjournment of the trial to do so. That request was denied. Claimant indicated he could not go forward. Defendant indicated that they were ready. Defendant’s application to dismiss the claim for a failure to prosecute was granted. An order directing judgment was executed on November 30, 2007 and, according to the records maintained by the Office of the Chief Clerk of the Court of Claims, a judgment of dismissal was entered on January 25, 2008. Claimant filed a notice of appeal on February 21, 2008, and again on November 13, 2008. With the present motion, Mr. Dystant has attached photocopies of documents to establish his attempts at service and to obtain deductions from his inmate account for the court ordered fees. [Affidavit in Support of Motion for Relief from Judgment by Robert Dystant, Exhibit I]. He received these photocopies after dismissal of the claim on November 30, 2007, although they

had been requested on November 11, 2007, after his transfer from Green Haven to Woodbourne. [Ibid.]. Indeed, they were not received until January 10, 2008 (well after the November trial date during which he was asked to produce proof of service). [Ibid.]. The sender’s portions of certified mail receipts addressed to Dr. Shapiro and Dr. Chakavorty respectively, are attached, but no green return-receipt cards are included. [Ibid.].

Consistent with his avowals, transactions on his inmate account are noted on a photocopy of a computer printout form he has submitted, dated November 21, 2007, and indicate two (2) withdrawals for postage in the amount of $5.94 each on November 5, 2007, and deductions identified as “outside purchase” relative to Dr. Chakavorty and Dr. Shapiro, in the amounts of $38.00 and $30.00 respectively, on November 7, 2007 from Green Haven. [Ibid. Exhibit J]. These same amounts appear to have been then credited to claimant’s account on or about December 28, 2007, as shown on two receipts indicating, respectively, “returning postage of $5.94 for an illegal 511 and the charge for the 511 of $30.00” and “returning postage of $5.94 for an illegal 511 and the charge for the 511 of $38.00.” [Ibid. Exhibit N]. No information is offered by either claimant or defendant as to what “an illegal 511” might be. The documentation, however, clearly suggests that claimant did try to mail the executed subpoenas in a timely fashion by the appropriate method, tried to obtain the appropriate disbursements for such mail service, and for the witness fees directed, but was unsuccessful through no fault of his own.

Civil Practice Law and Rules §5015 entitled “Relief from judgment or order” provides in pertinent part that a court which rendered such judgment may
“(a) . . . relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse party . . .”

To prevail on a motion brought pursuant to Civil Practice Law and Rules §5015 (a) (1) for an order vacating a judgment entered against him, claimant must establish both a reasonable excuse for his failure to prosecute on the scheduled trial date and a meritorious cause of action. Murray v New York City Health & Hosp.Corp., 52 AD3d 792, 793-794 (2d Dept 2008); Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 (2d Dept 2003). When relief is sought under that statutory provision, even when a reasonable excuse is presented, the movant must still show that he has a meritorious cause of action. Gourdet v Hershfeld, 277 AD2d 422 (2d Dept 2000) lv dismissed 96 NY2d 853 (2001); Mevorah v King, 303 AD2d 657 (2d Dept 2003). When the cause of action is one where evidence by an expert would be necessary to establish same for example - such as one for medical malpractice - an affidavit by a medical expert attesting to the meritoriousness of the cause of action must be submitted. See Gourdet v Hershfeld, supra; Mevorah v King, supra.

Similarly, when the application is made based upon newly discovered evidence, [Civil Practice Law and Rules §5015(a)(2), the movant must show that the evidence is so positive and convincing that the result would be different. Here, no trial proceeded in the first instance, and, what evidence is offered is directed to the reasons claimant chose not to go forward on November 30, 2007, not the substance of the claim.

More significantly, however, this motion is appropriately based upon Civil Practice Law and Rules §5015(a)(3), however characterized by counsel for the defendant. The proposed grounds for vacating the judgment of dismissal is that it is premised upon “fraud, misrepresentation or other misconduct of an adverse party.” If there has been such, then claimant is not further required to show the meritoriousness of his claim. Oppenheimer v Westcott, 47 NY2d 595, 603 (1979); Peterson v Melchiona, 269 AD2d 375 (2d Dept 2000); Shaw v Shaw, 97 AD2d 403 (2d Dept 1983). This is because it is the idea that one party has been prevented from fully litigating the matter on the merits through the misconduct - even if it does not rise to the level of fraud - of an adverse party.

Here, the facility apparently did not process claimant’s legitimate requests for postal service, and for court ordered witness fees. The issue of whether the business office should process such disbursement requests was decided through the grievance process in August 2007, yet in October 2007 such requests were apparently honored to the extent that deductions were made in early November 2007, but were thereafter left in limbo for undisclosed reasons.

By way of analogy, in the context of analyzing whether an equitable estoppel should apply to avoid defective service defenses, for example, courts have found that in the absence of rebuttal a claimant who shows that he made a timely request for certified mail service of his claim to a facility mail room, had monies deducted from his inmate account, yet such request was not acted upon, may be entitled to invoke the doctrine. See Wattley v State of New York, 146 Misc 2d 968, 969 (Ct Cl 1990)[5]; but cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004).[6]

Defendant has not at all addressed claimant’s uncontradicted assertions on these issues, through an affidavit by a person with knowledge of this particular case or of facility policy and procedures generally. Whatever the merit of his claim, the court has already determined that these physician witnesses were appropriate factual witnesses to give testimony concerning the medical treatment claimant received while in State custody. As substantiated in documentary evidence, the facility’s failures to properly process claimant’s mail and disbursement requests constitutes the kind of misconduct by an adverse party which, in this court’s view, necessitates vacating the judgment of dismissal. Civil Practice Law and Rules §5015(a)(3).

The court takes note of the fact that between the time claimant was mailed executed copies of subpoenas, and the time of trial, the claimant was also transferred to a different facility which, based upon the court’s prior experience, creates yet another way in which practical matters such as access to inmate funds or property, becomes problematic for the inmate litigant.

Based on the foregoing, claimant’s motion to vacate and set aside the judgment of dismissal is in all respects granted, and the claim is restored. When the trial date is set, claimant should forward a proposed subpoena for Dr. Shapiro for the court’s signature, and thereafter serve same by certified mail, return receipt requested with the statutory witness fee. Civil Practice Law and Rules §8001(a). Defendant is directed to produce Dr. Chakavorty - assuming he is still a State employee - without the necessity of a subpoena on the day of trial.

April 3, 2009
White Plains, New York

Judge of the Court of Claims

[1]. A additional document entitled “Motion to Strike the Respondent’s Affirmation in Opposition” (essentially a Reply) received after submission of the instant motion, without an affidavit of service reflecting service on defendant, has also been read.
[2].Quotations are to notes or audio recordings unless otherwise noted.
[3]. The court had written a letter one (1) month earlier (June 13, 2007) to claimant indicating that his letter expressing concern about the processing of his inmate account was being forwarded to the assistant attorney general handling the claim suggesting that the Attorney General’s Office address the issue with its client. [Affidavit in Support of Motion for Relief from Judgment by Robert Dystant, Exhibit D].
[4]. Notably rendered only one (1) week before the trial.

[5]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mail room.” “While the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity (see, e.g., Richardson, Evidence §72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant’s mailing request was received and charged for, but not acted on . . . (citation omitted). Claimant did what he was supposed to do and all that defendant allowed . . . [thereby relying] on defendant’s employees to properly do their job . . . (citation omitted). Plainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees
. . . (citation omitted).” Wattley v State of New York, supra, at 969, 970.

[6]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mail room’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The appellate division determined that “. . . claimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility’s mail room personnel
. . . A review of the record reveals that the mail room personnel followed proper procedures in processing claimant’s legal mail.”