Di Maio v. State, 70754

• Decision Date: 27 May 1987
• Docket Number: No. 70754,70754
• Citation: 135 Misc.2d 1021,517 N.Y.S.2d 675
• Parties: Victor J. DI MAIO, Claimant, v. STATE of New York, Defendant. (Claim)
• Court: New York Court of Claims

Page 675

517 N.Y.S.2d 675

135 Misc.2d 1021

Victor J. DI MAIO, Claimant, v. STATE of New York, Defendant.

(Claim No. 70754.)

Court of Claims of New York.

May 27, 1987.

Terence L. Kindlon, Albany, for claimant.

Robert Abrams, Atty. Gen. by Charles E. Roberts, Asst. Atty. Gen., for defendant.

DONALD J. CORBETT, Jr., Judge.

Claimant Victor J. Di Maio, a veteran of the Viet Nam War, alleges that the New York State Division of Veterans' Affairs (SDVA) committed a fraud upon him by, inter alia, deliberately misplacing Di Maio's application for veteran's disability compensation benefits for a "service-connected" disability and misadvising Claimant about the status of this application. This fraud, it is alleged, caused Claimant to be precluded from and deprived of such benefits for some fifteen years.

In 1962 Claimant, having only a tenth grade education, enlisted in the Army National Guard and, in 1964, enlisted in the United States Marine Corps. He was trained in counterguerrilla warfare and was assigned to an infantry combat unit in Viet Nam. His first years in the military were very successful and he advanced rapidly in rank. He was eventually assigned to a Special Operations Group Team in which his duties involved actions against civilians, including women and children, behind enemy lines. As a result of these experiences, Claimant developed what is now termed Post Traumatic Stress Syndrome, a medically recognized disability.

After his Viet Nam duties, he became withdrawn, suffered flashbacks and nightmares, started drinking heavily (becoming an alcoholic), and attempted suicide. He was granted temporary leave to return to his home in Gloversville, New York, and on two occasions was absent without leave. He was sent to St. Albans Naval Hospital in Queens, New York, for psychiatric treatment, leaving in March 1968. His separation from service was March 11, 1968. Finally, he was declared unfit and unsuitable for further military service and received an Honorable Discharge from the Marine Corps on June 14, 1968.

Claimant returned to Gloversville, married, and is now the father of two children. His family continues to live in Gloversville. He is currently classified as being seventy percent disabled with the United States Veterans' Administration and has been receiving disability compensation benefits since 1983. Inasmuch as no application for such benefits was filed within one year of Claimant's separation from the Military Service, here March 11, 1968, retroactive benefits were not available from the Veterans' Administration (VA). Claimant alleges the failure to have timely filed this application is the result of a fraud and deception practiced upon him by a Veterans' Counsellor employed by the SDVA, and he seeks, among other things, recompense for the many years of lost benefits.

On August 12, 1968, Claimant met with Bruce Hess, the SDVA counsellor described above, in Johnstown, New York, for the purpose of applying for disability compensation benefits because of his "nervous disorder". Hess was supposed to help veterans with their applications, advocate on their behalf, and generally assist veterans in their affairs with the VA (Executive Law § 358). Claimant gave to Hess a letter dated April 4, 1968, from Adjudication Officer Grody of the VA which advised that Claimant's application for vocational rehabilitation was rejected because he "not have a disability incurred in or aggravated by service". In other words, the VA thought Claimant's disability was not service connected. Claimant also gave to Hess another letter from the VA dated April 16, 1968, which contained an application form (Form 526) for benefits. Since Claimant was confused regarding which applications had been filed and what they meant, Hess wrote on the following day, August 13, 1968, on Claimant's behalf to one Grody of the VA for a status report regarding any disability compensation application, if one had been filed. Grody responded by letter dated August 30, 1968, to Claimant advising him of Hess's inquiry and enclosing a blank Form 526 for completion and submission to the VA.

At the meeting of August 12, 1968, Hess also advised Claimant to obtain a doctor's statement, as well as letters from Claimant's employer, family, friends and fellow servicemen, regarding the nature of Claimant's disability. All of this was to have been submitted to the VA in support of an application for disability compensation benefits. Clearly both Hess and Claimant were confused at this time as to whether a Form 526 had been previously filed. Claimant thereafter also executed a power of attorney authorizing the Veterans of Foreign Wars (VFW) to be his accredited representative before the VA.

Claimant returned to see Hess on October 4, 1968, bringing with him a statement from Claimant's personal family physician, Doctor D'Errico, who had treated him since childhood. Since this statement in Hess's opinion was not strong enough to show a service-connected disability, Hess made arrangements for Claimant to see the psychiatrist in residence at the Fulton County Mental Health Department, which was located down the hall from Hess's office. Claimant did not appear, missed all appointments, and submitted no further documentation to Hess. On October 7, 1968, Hess wrote to one Julian Mason of the VFW (Claimant's designated accredited representative) on Claimant's behalf requesting assistance in determining the VA's position on the service connection of Claimant's nervous disorder. Mason responded on October 28, 1968, advising that the VA had determined that Claimant had an emotionally unstable personality, pre-existing his service, and expressing surprise at this finding, particularly after 3 1/2 years of service. Mason also noted that no Form 526 was on file and suggested that Claimant might well be advised to file one which noted all earlier treatments for his disabilities.

On October 30, 1968, Hess wrote to Claimant, requesting that Claimant come in to discuss the communication noted above and to take steps to follow through. Claimant alleges that he telephoned Hess in response to this letter but that Hess communicated that the disability claim (Form 526) had been filed and denied, and that Claimant had no viable claim. Hess has no recollection and/or file notes of such conversation, nor did Claimant offer any documentary proof of the same.

Claimant did not return to see Hess again until ten months later in August 1969 for consultation on another matter, and some nine more times between 1969 and 1976. It is alleged that Hess continued to represent to Claimant that no viable claim existed as the prior claim had been denied. Concededly, Hess made no further attempts to file a disability claim or to have Claimant secure the previously requested documentation.

Finally, in 1983, after Hess retired, Claimant met with a new Veterans' Counsellor, Hill, seeking advice on real property tax exemptions. Hill reviewed Claimant's file, saw that there was a blank Form 526, and concluded that no disability claim had ever been filed. Hill, believing that a claim should have been filed on Claimant's behalf in 1968, prepared an application for Claimant's signature and submitted it to the VA. It is important to note here that thereafter the VA, by letter dated May 5, 1983, requested medical and/or lay evidence describing the diagnosis/manifestations of the claimed post-traumatic stress disorder. It appears that this is the same information that would have been necessary and was requested by Hess in 1968 had Form 526 been filed at that time. Claimant submitted the requested information and was found to be fifty percent disabled (shortly thereafter raised to seventy percent) for a service-connected disability. Retroactive benefits were unavailable as application must be made within one year of separation. Argument that a Form 526 application had been timely filed but lost by the VA was unavailing, as the VA had no record thereof.

The gravamen of the instant claim is that Hess led Claimant to believe that the disability compensation benefits application had been filed in 1968 and was denied by the VA. Claimant contends that he relied upon Hess's communication to that effect, and ceased any further efforts to secure disability benefits until 1983, when Hill instigated the filing of the successful application.

The elements of an action to recover for fraud are "representations, falsity, scienter, deception and injury" (Arthur v. Griswold, 55 N.Y. 400, 410; Jo Ann Homes at Bellmore, Inc. v. Dworetz, 25 N.Y.2d 112, 302 N.Y.S.2d 799, 250 N.E.2d 214). The burden of proof is met by clear and convincing evidence, a higher standard than a fair preponderance of the evidence (Simcuski v. Saeli, 44 N.Y.2d 442, 406...