New York State Court of Claims

New York State Court of Claims

KOTLER v. THE STATE OF NEW YORK, #2009-045-013, Claim No. 115170, Motion Nos. M-75991, CM-76079


Synopsis


Claimant’s motion to compel discovery. Defendant’s cross-motion to dismiss claim regarding telephone charges incurred in making collect calls from a correctional facility.

Case Information

UID:
2009-045-013
Claimant(s):
KERRY KOTLER, PATRICIA KOTLER, KELLEY NORMAN, RICHARD RADE, MICHAEL STEPHENS, KATHY KOTLER, and PATRICIA KOTLER, as fiduciary of the Mackenzie Anne Kotler 1997 Trust
Claimant short name:
KOTLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115170
Motion number(s):
M-75991
Cross-motion number(s):
CM-76079
Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Kerry Kotler, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered by the Court on these motions: Claimants’ Notice of Motion, Claimants’ Affidavit in Support with annexed Exhibits A and B, Defendant’s Notice of Cross-Motion, Defendant’s Affidavit in Support of Cross-Motion with annexed Exhibits A-C, Claimants’ Affidavit in Answer to Cross-Motion and the filed Claim. Claimants, Kerry Kotler, Patricia Kotler, Kelley Norman, Richard Rade, Michael Stephens, Kathy Kotler, and Patricia Kotler, as Fiduciary of the Mackenzie Anne Kotler 1997 Trust, have brought this motion seeking an order pursuant to CPLR 3124 directing defendant, the State of New York, to disclose certain material and information requested by claimants in their September 30, 2008 discovery demand. In response, defendant has brought a cross-motion seeking an order pursuant to CPLR 3212 for summary judgment dismissing the claim.

Claimants allege in their claim which was filed on April 25, 2008 that they seek to recover the “illegal and improper surcharge” that was placed upon all the collect calls that were made by claimant, Kerry Kotler, to various friends, family and attorneys. The collect calls were placed by Kerry Kotler while he was incarcerated at various New York State correctional facilities during the period of approximately June 2004 through June 2007. Kerry Kotler stated in the claim that the collect calls were initially paid for by the recipients of the calls. The recipients of the calls are also listed as claimants in this matter. Kerry Kotler alleges that he reimbursed the recipients of the collect calls at some unspecified time after the calls were completed. Claimants seek to recover the surcharge and “unlegislated” tax that defendant improperly imposed on collect calls through its contract with the telephone provider.

In response to claimants’ motion, defendant informs the Court that it is attempting to locate the responsive documents and if the claim survives the cross-motion defendant will provide a response to claimants’ discovery demands. In support of its cross-motion defendant initially contends that claimant, Kerry Kotler, does not have standing to bring a claim on behalf of the other claimants listed in this matter.

Claimant, Kerry Kotler, a pro se inmate, is the only signatory on the filed claim. It is axiomatic that Kerry Kotler does not have the authority to initiate legal actions on behalf of the other listed claimants in this matter (Matter of Welsh [Commissioner of Labor], 51 AD3d 1351 [3d Dept 2008]). Consequently, the Court dismisses those claims brought in the names of Patricia Kotler, Kelley Norman, Richard Rade, Michael Stephens, Kathy Kotler, and Patricia Kotler, as Fiduciary of the Mackenzie Anne Kotler 1997 Trust.

Defendant also asserts that Kerry Kotler has not suffered any damages in this matter since the recipients of the calls paid for the collect calls. Claimant concedes that the complained of phone charges relate to collect calls where the charges were accepted by the recipients of the calls. It is the recipients of the calls that incur the financial obligations of the calls and have standing to institute claims, not claimant (see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186 [2007]; Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]). Additionally, the recently decided case of Matter of Walton v New York State Dept. of Correctional Servs., 57 AD3d 1180 [3d Dept 2008] holds that claims such as the ones presented in the current action are without merit. Consequently, the Court must dismiss the claim in its entirety.

Therefore, for the foregoing reasons, claimants’ motion is denied as moot. Defendant’s cross-motion to dismiss the claim is granted.

March 31, 2009
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims