Upon defendant's extensive motion for sanctions, the Court issued a final Order providing for future sanctions if claimant fails to present proof at trial or respond to motions.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||JOHNATHAN JOHNSON, PRO SE|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Acting Attorney General
BY: PAUL F. CAGINO, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 22, 2018|
|See also (multicaptioned case)|
The following papers were read on defendant's motion for sanctions:
1. Notice of motion with attached affirmation of Paul F. Cagino, AAG, and attached exhibit, filed June 23, 2017 and Memorandum of Law;
2. Claimant's Reply Affidavit, dated June 29, 2017;
3. Correspondence with attached proposed Anti-Filing injunction order from Paul F. Cagino, AAG, dated June 28, 2017;
4. Court list of all of claimant's open claims.
5. Correspondence from claimant, filed November 9, 2017;
6. Claimant's Affidavit of Merit, filed November 27, 2017;
7. Filed papers: Interim Order.
The Court issued a Decision and Interim Order, filed November 2, 2017, in which claimant's extensive litigation history was reviewed in consideration of defendant's motion for sanctions for filing frivolous claims, to enjoin claimant from filing new claims pending payment of outstanding legal encumbrances and advances, and to require amendments to pending claims and permission before filing any new claims. The Court adjourned the motion to "provide claimant with the final opportunity to prove his motivation for pursuing litigation was a good-faith belief in the validity of both the merits and legal basis of his claims and motions, and that his actions had no improper purpose, such as to delay or prolong the resolution of the litigation, to harass or maliciously injure another, or which asserted false material factual statements." The ordering paragraphs required claimant to do the following:
1. Using the attached list of all open cases in the Court's database and the detailed information about prior decisions contained in the defendant's motion, claimant is to review every open claim and all orders/decisions that have modified them.
2. Claimant is to provide an affidavit listing the causes of action within each claim that he wants to pursue. If a cause of action is on his list, that means he has a good-faith belief in the validity of both the merits and legal basis of the cause of action, and that the cause of action does not have any improper purpose, such as to delay or prolong the resolution of the litigation, to harass or maliciously injure another, or which asserts false material factual statements.
3. If claimant decides to discontinue any of the causes of action within a claim or an entire claim, that should be stated in his affidavit. Such discontinuance will be with prejudice.
4. Claimant shall file this affidavit within 90 days of the filing of this decision and interim order.
The purpose of this mandated review of all the open claims was to give claimant an opportunity to eliminate those claims that he had since learned were not sustainable, improperly pleaded, or duplicative, or which he did not want to pursue.
After that Interim Decision and Order was issued, claimant sent a letter to the Court, dated November 6, 2017 and filed on November 9, 2017, stating that he had no intention of eliminating any claim. Claimant did not indicate that he reviewed any of his claims and, given the short time between receipt of the Order and his response, it is likely that he did not do as ordered.
In a more expansive explanation of his position, claimant did submit an affidavit dated November 22, 2017 and filed November 27, 2018, in which he raised several points. The Interim Decision and Order noted that claimant failed to file an opposition to the defendant's motion to dismiss claim number 129222. That claim, filed January 27, 2017, alleged that he was served cold food on January 18, 2017 at Upstate Correctional Facility and prison officials refused to replace his tray. As a result, claimant alleged that he was unable to take his prescribed medications, "felt ill all evening . . . suffering from breathing difficulties, stomach stress, and unstable blood pressure." The claim, sounding in negligent supervision, sought $50,000 in damages. In his November 22, 2017 affidavit, he stated (if I read his handwriting correctly) that he did not oppose the motion to dismiss because the officer came the following day with a new tray. This does not excuse claimant's litigious behavior but highlights it: he filed a claim within days of accrual, then changed his mind but did not withdraw the claim, thereby causing both the Court and counsel to expend time in connection with the defendant's motion to dismiss. If claimant had changed his mind about other claims, the Interim Order required that he so notify the Court.
His November 22, 2017 affidavit also cites Brown v State of New York (89 NY2d 172 ) and Boggs v State of New York (51 Misc 3d 376 [Ct Cl 2015]) as justification for his refusal to re-evaluate his many constitutional tort claims. Those cases confirm that the Court of Claims has jurisdiction to consider some constitutional tort claims, but the case law clarifies that a such a claim is barred when a claimant has an alternative legal remedy to protect his constitutional rights, such as an Article 78 proceeding. (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Deleon v State of New York, 64 AD3d 840, 840-41 [3d Dept 2009].)
Claimant filed an Article 78 petition in Albany County Supreme Court on November 7, 2017 seeking relief from this Court's Interim Decision and Order, which petition was dismissed by order dated May 4, 2018 on judicial immunity grounds. The defendant's motion is now ripe for final resolution.
Claimant did comply with the Interim Decision and Order by indicating in both his letter filed November 9 and affidavit filed November 27 that none of his claims and causes of action are frivolous and that he is prepared to proceed with all of them. Defendant's motion does provide detail for the causes of action in many previously filed claims that have been dismissed and those that remain in open cases, but it appears that many of them were dismissed on summary judgement based on proof submitted by defendant in support of its motion (see Johnson v State of New York, UID No. 2016-038-519 [Ct Cl, DeBow, J., Apr. 4, 2016]), or after a trial (see Johnson v State of New York, UID No. 2015-038-114 [Ct Cl, DeBow, J., Sept. 29, 2015].) The omnibus approach of the defendant's motion puts the impossible burden on the Court to wade through each of the 74 pending claims, review hundreds of causes of action, and parse out those causes of action that are dismissible on the pleading from those that require proof on summary judgment or trial. The better course of action is as laid out in the Interim Decision and Order: (1) the Court will proceed to schedule trials following the Court's usual procedures, beginning with the oldest claim; (2) once a claim is scheduled for trial, there will be no adjournments except for good cause; (3) if claimant fails to appear for trial on the date scheduled or is unprepared to proceed with proof on the pending causes of action, the Court will consider whether that constitutes a sanctionable event pursuant to 22 NYCRR 130-1; (4) with respect to any claim, if defendant moves to dismiss or for summary judgment, and claimant fails to file a substantive response to such a motion, the Court will consider whether there is evidence of a sanctionable event pursuant to 22 NYCRR 130-1; and (5) discovery motions must follow the same requirements of good faith belief and proper purpose. Sanctions may include financial sanctions or the requirement that claimant obtain judicial review of proposed new claims prior to filing.
Defendant's motion is denied without prejudice to renew in a subsequent motion for summary judgment or to dismiss at the time of trial.
May 22, 2018
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1.This decision and order pertains to the claim number listed as well as claim numbers 114591, 115061, 115726, 116468, 117598, 117772, 117777-A, 118081, 118328, 118527, 118609, 118875, 118944, 119049, 119180, 119258, 119323, 119474, 119544, 119686, 119946, 120294, 120360, 120420, 120569, 120650, 120685, 120738, 120837, 120937, 121110, 121245, 121443, 121585, 121814, 121814-A, 121834, 121890, 121973, 122040, 122108, 122166, 122705, 122832, 123009, 123047, 123120, 123189, 123251, 123275, 123366, 123395, 123467, 123736, 123909, 124669, 124717, 124779, 124815, 125062, 125274, 125447, 125467, 125929, 126065, 127074,127944, 128232, 128474, 128861, 128981, 129887, 129935.