Opinion
# 2016-040-059 Claim No. 127887 Motion No. M-88648
09-19-2016
JOHN ZOCCOLI, 98A4768 v. THE STATE OF NEW YORK
John Zoccoli, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
State's pre-Answer motion to dismiss for failure to state a cause of action granted.
Case information
| UID: | 2016-040-059 |
| Claimant(s): | JOHN ZOCCOLI, 98A4768 |
| Claimant short name: | ZOCCOLI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127887 |
| Motion number(s): | M-88648 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | John Zoccoli, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 19, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Pre-Answer Motion to dismiss the Claim for failure to state a cause of action pursuant to CPLR 3211(a)(7) is granted.
This pro se Claim, which was filed with the Clerk of the Court on May 2, 2016, alleges that Claimant is seeking to recover money paid to legal counsel for representing him in prosecuting a proceeding pursuant to CPLR Article 78. The Article 78 action challenged a prison disciplinary determination.
Claimant asserts that the counsel retained for him was paid by his wife and mother (Claim, ¶¶ 9, 18).
On June 23, 2016, the Appellate Division, Third Department, issued a Memorandum and Judgment in Matter of Zoccoli v Annucci (140 AD3d 1512, 1513 [2016]), stating:
The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. In view of this, the petition must be dismissed as moot (see Matter of Roye v Annucci, 137 AD3d 1392, 1393 [(3d Dept) 2016]; Matter of James v Prack, 137 AD3d 1390, 1391 [(3d Dept) 2016]).
By this pre-Answer Motion, Defendant seeks dismissal pursuant to CPLR 3211(a)(7), on the basis that Claimant fails to state a cause of action. On a motion to dismiss a claim pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [quotation marks and citations omitted]).
Defendant asserts Court of Claims Act § 27 provides that, except in certain situations not pertinent here, no costs, disbursements or attorneys fees shall be awarded to any party. Moreover, Civil Rights Law § 79(3) and § 79-a(3) "specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation …" (Gittens v State of New York, 175 AD2d 530, 530-531 [3d Dept 1991]; see also Shell v State of New York, 307 AD2d 761 [4th Dept 2003], lv denied 1 NY3d 505 [2003]) (Affirmation in Support of Michael T. Krenrich, Esq., Assistant Attorney General, ¶ 4).
Claimant asserts that he has brought this action pursuant to CPLR § 8601(a), which provides in pertinent part:
§ 8601. Fees and other expenses in certain actions against the state.
(a) When awarded. In addition to costs, disbursements and additional allowances awarded pursuant to sections eight thousand two hundred one through eight thousand two hundred four and eight thousand three hundred one through eight thousand three hundred three of this chapter, and except as otherwise specifically provided by statute, a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state , unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust. Whether the position of the state was substantially justified shall be determined solely on the basis of the record before the agency or official whose act, acts, or failure to act gave rise to the civil action …
While Claimant is correct that he may seek costs and fees in certain cases, CPLR § 8601(a) states the Court shall award costs and fees to the prevailing party. In addition, CPLR § 8601(b) provides:
(b) Application for fees. A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application which sets forth (1) the facts supporting the claim that the party is a prevailing party and is eligible to receive an award under this section, (2) the amount sought, and (3) an itemized statement from every attorney or expert witness for whom fees or expenses are sought stating the actual time expended and the rate at which such fees and other expenses are claimed.
Thus, the Court finds and concludes that a request for costs and fees pursuant to CPLR § 8601 must be made to the court that heard the original action, in this case, the Appellate Division, Third Department, and not brought by separate action in the Court of Claims.
In fact, Claimant made the request for reimbursement of counsel fees to the Appellate Division, Third Department, and that Court stated:
Under the circumstances presented, however, we deny petitioner's request for reimbursement of counsel fees and miscellaneous expenditures that are not substantiated by the record.
( Matter of Zoccoli v Annucci, supra)
As this Court finds that Claimant has brought this action for costs and fees pursuant to CPLR § 8601 in the incorrect court, and the proper court already has decided the matter, the State's Motion to Dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7) is granted and, therefore, the Claim is dismissed.
September 19, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to Dismiss: Papers Numbered Notice of Motion, Affirmation in Support, & Exhibit Attached 1 Affidavit in Opposition & Exhibits Attached 2 Filed Papers: Claim