Brown v State of New York

[*1] Brown v State of New York 2005 NY Slip Op 52221(U) [10 Misc 3d 1071(A)] Decided on October 24, 2005 Ct Cl Collins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2005
Ct Cl

Michael Brown, Claimant,

against

State of New York, Defendant.



106655



For Claimant:

Law Office of John A. Piasecki

By: John A. Piasecki, Esquire

For Defendant:

Honorable Eliot Spitzer, Attorney General

By: Dennis M. Acton, Esquire

Assistant Attorney General

Francis T. Collins, J.

By order to show cause signed on September 8, 2005 the defendant was directed to show by written submission why an order should not be entered directing the Clerk of this Court to enter a judgment for the amount of an agreed settlement plus interest at the statutory rate from February 14, 2005[FN1]. Service of the order to show cause by regular mail was directed to be made upon both the Attorney General's Office and the Office of the State Comptroller.

The underlying claim sought $1.5 million for physical injuries to claimant's right and left Achilles tendons suffered while playing basketball on an uneven gym floor at Bare Hill Correctional Facility on March 17, 2001 and for subsequent injuries occasioned by the alleged [*2]medical malpractice of Department of Correctional Services' (DOCS) medical personnel in misdiagnosing claimant's injuries.

During the course of trial the parties agreed to settle the instant action for $12,000. A stipulation of settlement and discontinuance signed by the parties' attorneys was so ordered by the Court on December 1, 2004 and filed with the Clerk of the Court on December 6, 2004. The stipulation was thereafter forwarded to the New York State Comptroller's Office which acknowledged the receipt of certain documentation and requested additional information in correspondence dated February 8, 2005 and addressed to claimant's attorney (claimant's Exhibit 2). That correspondence stated:

Dear Mr. Piasecki:

This will acknowledge receipt of the following documentation:

- Release

- Stipulation of Settlement and Discontinuance

- Copy of Claim

Enclosed is a New York State Standard Voucher. Please enter your Tax Identification Number (Social Security Number) in (block No.3), sign the Payee Certification (Block #7) and return the original OSC copy (Retain Payee Copy) for payment to the following address:

Mr. Colin M. Campbell Office of the State Comptroller

Bureau of Financial Administration 13th Floor 110 State Street

Albany, NY 12236

Claimant's attorney provided the completed standard voucher as directed by the Comptroller's Office under covering correspondence dated February 14, 2005 (claimant's Exhibit 3). Claimant's attorney alleges on the motion that payment was not made and more than 90 days have lapsed since the submission of the settlement papers and claimant's demand for payment.

Section 5003-a of the Civil Practice Law and Rules provides, in relevant part, as follows:

(c) When an action to recover damages has been settled and the settling defendant is the state, an officer or employee of the state entitled to indemnification pursuant to section seventeen of the public officers law, or a public benefit corporation indemnified by the state, payment of all sums due to any settling plaintiff shall be made within ninety days of the comptroller's determination that all papers required to effectuate the settlement have been received by him.

* * *[*3]

(e) In the event that a settling defendant fails to promptly pay all sums as required by subdivisions (a), (b), and (c) of this section, any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid. The judgment shall be for the amount set forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered.

Although subdivision (e) provides that plaintiff may enter judgment without further notice the Court directed that this application be made by order to show cause on notice to both the Attorney General and the Comptroller.

The opposition to the motion consisted of an unsworn letter from Assistant Attorney General Dennis M. Acton disputing the Court's subject matter jurisdiction and a faxed copy of an affirmation of Harvey C. Silverstein, a supervising attorney in the Office of the State Comptroller. Neither Mr. Acton's letter nor Mr. Silverstein's affirmation were filed with the Clerk of the Court as required by 22 NYCRR 206.9 (b). Although the Silverstein affirmation referenced correspondence from both the Nassau County District Attorney's Office and claimant's attorney no such correspondence was attached as indicated. Nor has the defendant submitted a copy of the purported restitution order of Nassau County Court Judge Abbey L. Boklan which is also referred to in the Silverstein affirmation and forms the basis for the Comptroller's failure or refusal to pay the amount stipulated. A reading of the statute, however, suggests that even if these documents had been properly submitted they would have had no effect on the outcome of this motion since CPLR 5003-a does not provide for offsetting or reducing the stipulated amount prior to entry of the judgment.

Mr. Silverstein's allegation that all documents necessary to finalize settlement have not been submitted rings hollow. Claimant's attorney has submitted all of the paperwork which the Comptroller's office requested and the defendant has failed to provide any statutory or case law authority to support the contention that additional submissions are required. Accordingly, the Clerk of the Court is directed to enter a Judgment in the amount of $12,000 plus interest at the legal rate from February 8, 2005.

Saratoga Springs, New YorkFRANCIS T. COLLINS

October 24, 2005Judge of the Court of Claims Footnotes

Footnote 1:Claimant's attorney alleges this date as the date on which he fully complied with the Comptroller's request for papers concerning this settlement. CPLR 5003-a (e) provides that interest shall be due "on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered" which herein appears to be February 8, 2005 (see claimant's Exhibit 2).