New York State Court of Claims

New York State Court of Claims

MILNER v. STATE OF NEW YORK, #2009-040-033, Claim No. 114828, Motion No. M-76008


State’s motion (1) to amend answer to assert new affirmative defenses, (2) for dismissal based upon those defenses, and (3) for summary judgment, all denied.

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:
Samantha C. Milner, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Thomas R. Monjeau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 22, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s motion: (1) for leave to amend its Answer pursuant to CPLR 3025(b) to assert new affirmative defenses; (2) for dismissal based upon those affirmative defenses; and (3) for summary judgment dismissing the Claim is denied.

The Claim, which was filed with the Clerk of the Court on February 13, 2008, alleges defamation of character, fraud, malice, negligence and interference with contractual relations as a result of being reported as in default on certain student loans.

By this motion, the Defendant seeks to amend its Answer to assert the affirmative defenses of res judicata and collateral estoppel and that the statute of limitations had expired prior to the date of filing of the Claim (Ex. B attached to Motion).

CPLR 3025(b) provides that leave to amend shall be freely given upon such terms as are just. The phrase has been interpreted to mean that, in the absence of prejudice or unfair advantage, leave to amend should be given freely (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Nasuf Constr. Corp. v State of New York, 185 AD2d 305 [2d Dept 1992]). “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:5; Arcuri v Ramos, 7 AD3d 741, 741-742 [2d Dept 2004]). “[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse” (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, supra at 959; Turner v Caesar, 2 AD3d 1086, 1087 [3d Dept 2003]; Ferran v Williams, 281 AD2d 819, 820-821 [3d Dept 2001]; lv dismissed 97 NY2d 653 [2001]). Conversely, such leave “should not be granted where the proposed amendment is devoid of merit” (Nasuf Constr. Corp. v State of New York, 185 AD2d 305, supra at 306; Ortega v Bisogno & Meyerson, 2 AD3d 607, 609 [2d Dept 2003]. The determination to grant or deny leave to amend is made on a case by case basis (Murray v City of New York, 43 NY2d 400, 404-405 [1977]; Fulford v Baker Perkins, Inc., 100 AD2d 861 [2d Dept 1984]).

Prejudice to the non-moving party is shown where that party is “hindered in the preparation of its case or has been prevented from taking some measure in support of its position” (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]). Here, Claimant has failed to establish that she will be prejudiced if the Court were to grant the motion.

The query, then, is whether the State has made a sufficient showing that the amendment may be meritorious.

It is Defendant’s contention that this Claim is barred based upon the doctrine of res judicata and collateral estoppel because of the dismissal of a prior claim filed by Ms. Milner.

On May 8, 2001, Ms. Milner filed Claim No. 104248. In that Claim, Ms. Milner sought damages for injuries she asserts were sustained, when, beginning sometime prior to September 1999, Defendant began issuing allegedly false statements regarding the status of her student loans to credit reporting agencies (see Ex. E attached to State’s Motion papers).

Pursuant to the doctrine of res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]; Matter of Field Home-Holy Comforter v De Buono, 238 AD2d 589 [2d Dept 1997]). As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]).

“The equitable doctrine of collateral estoppel ‘precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity’” (Church v New York State Thruway Auth., 16 AD3d 808, 809 [3d Dept 2005], quoting Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “[P]reclusive effect is limited to only those ‘issues that were actually litigated, squarely addressed and specifically decided’” (id. at 810, quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). Moreover, “a determination will generally not be given preclusive effect unless the resolution of the issue was ‘essential’ to the decision rendered in the first action or proceeding” (id.).

“The party seeking application of collateral estoppel bears the burden of showing that the decisive, identical issue was ‘necessarily decided’ in the prior action, while the party opposing the application of the doctrine must demonstrate the absence of a full and fair opportunity to contest the prior determination” (id. at 809-810, see Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002]). “The question of whether a litigant had a full and fair opportunity to contest the prior determination on those issues requires a case-by-case analysis of the realities of the prior litigation, ‘including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination’” (id. at 810, quoting Ryan v New York Tel. Co., 62 NY2d 494, supra at 501).

The Court concludes that the State’s proposed affirmative defenses of res judicata and collateral estoppel do not have merit.

With respect to Ms. Milner’s first Claim (Claim No. 104248), then Judge (now Presiding Judge) Richard E. Sise held that Ms. Milner’s 2001 claim was untimely because neither a claim was filed nor a notice of intention was served within 90 days after Defendant’s first publication of her alleged default (Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221, 222 [Ct Cl 2004], affd 24 AD3d 977 [3d Dept 2005]). In doing so, Judge Sise applied the single publication rule (see Gregoire v Putnam’s Sons, 298 NY 119, 124 [1948] [mass publication and distribution of allegedly libelous matter in single edition of newspaper, magazine, or book, gives rise one defamation cause of action that accrues on the original publication date]) and determined that “the continued reporting of claimant’s delinquency cannot be considered a republication [that would initiate a new statute of limitations period] as the material allegation, that claimant was in default, remained unchanged” (Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221, supra at 225 [emphasis supplied]). Assuming, arguendo, that the single publication rule did not apply, Judge Sise further concluded that Ms. Milner’s claim, nevertheless, was time-barred because Defendant had “established that its last report was made in August 2000” (id.). The Third Department determined that Ms. Milner’s assertion that Defendant republished its defamatory statement when it hired a collection agency in late 2000, likewise, was untimely such that the appellate court did not need to consider whether those statements constituted republication (Milner v New York State Higher Educ. Servs. Corp., 24 AD3d 977, supra at 978).

This Court concludes that the instant Claim is not barred by application of the doctrine of res judicata and/or collateral estoppel because the “issues that were actually litigated, squarely addressed and specifically decided” in those decisions were not the same as the ones posed by the instant Claim (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, supra at 826). Ms. Milner’s 2001 claim was dismissed as untimely when measured against either the continued series of update reports to which the single publication rule was applied (in the absence of some intervening act of republication), or, in the alternative, Defendant’s last actions taken in 2000 (assuming, arguendo, that those could be regarded as independent events to which a new statute of limitations applied).

Ms. Milner’s current Claim asserts, by contrast, that it accrued on November 24, 2007, when she apparently received a letter from Defendant stating that her request for TAP (Tuition Assistance Program) financial aid was denied. The reason noted was that she was in default on a student loan. Claimant alleges defamation of character, fraud, malice, failure to act, interference with contractual relations, negligence, unfair practices and harassment. Defendant does not appear to contest that Claimant’s 2007 application for TAP was denied because she was “in default on a student loan” (Affidavit of Brian Matthews in support of State’s motion, ¶ 2).

The 2007 TAP correspondence cannot fairly be construed as one of the continuing reports of delinquency noted by Judge Sise. To the contrary, the earlier decisions make clear that those updates ceased in 2000. Defendant has not asserted that any similar reports or letters were issued during the intervening period. Thus, the Court concludes that the 2007 TAP letter, coming as it did after a seven-year hiatus, constitutes a republication of the alleged default that commenced a new statute of limitations period (see Rinaldi v Viking Penguin, 52 NY2d 422 [1981] [paperback edition incorporating surplus, unbound pages from previously published hardcover book, with updated publication date and copyright information, constituted independent act, rather than part of continuous publication, triggering new statute of limitations period]). Moreover, the instant Claim appears to have been served and filed within 90 days of the asserted date of accrual (see Ex. C attached to State’s motion papers). Thus, the earlier determinations that the 2001 claim was untimely have no res judicata or collateral estoppel effect on the instant Claim.

For the reasons cited above, Defendant’s argument, likewise, is unavailing that the law of the case, based upon Judge Sise’s 2004 decision, has fixed the accrual date for this Claim and, thus, the statute of limitations, as sometime prior to September 1999 (see Affirmation of Thomas R. Monjeau in support of State’s motion, ¶ 21).

The Court is satisfied, moreover, that Claimant primarily seeks monetary relief for the damages alleged, rather than equitable relief that prays for this Court to review Defendant’s administrative action in rejecting her application for TAP benefits. As such, the Court finds Defendant’s arguments in this regard to be unpersuasive (see id., ¶¶ 29-36).
Finally, the Court rejects Defendant’s contention that Claimant has failed to state a cause of action on its face (id., ¶ 23), or to make out a prima facie case (see id., ¶¶ 37-42). It is settled that “the pleadings of pro se litigants should be liberally construed, and that they are held to ‘less stringent standards than formal pleadings drafted by lawyers’ (Haines v Kerner, 404 US 519, 520). Unless a cause of action cannot be discerned from the four corners of the claim, a motion to dismiss should be denied ‘whether the pleading’s language is wretched or poetic’ (Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3013:7)” (Perkins v State of New York, Ct Cl, Claim No. 114315, December 11, 2008, Minarik, J. [UID No. 2008-031-063]). Here, the Court finds that the essential nature of Ms. Milner’s defamation action is readily discernable from her Claim.
In addition, the State’s motion for summary judgment dismissing the Claim is also denied. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). “Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, supra at 324; see Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853). Defendant’s submission fails to establish entitlement to judgment as a matter of law.
Therefore, the State’s motion: (1) for leave to amend its Answer; (2) for dismissal based upon its proposed amendments; and (3) for summary judgment dismissing the Claim is denied.
April 22, 2009
Albany, New York
Judge of the Court of Claims
The following papers were read and considered by the Court on the State’s motion:
Papers Numbered
Notice of Motion, Affirmation in Support
and Exhibits attached 1
Notice of Motion in Opposition of Defendant’s
Motion to Amended the “Answer” 2
Filed Papers: Claim, Answer, Claimant’s Response to Defendant’s
Combined Discovery Demands