Ruotolo v. State

• Decision Date: 31 July 1991
• Docket Number: No. 70726,70726
• Citation: 151 Misc.2d 820,574 N.Y.S.2d 904
• Parties: Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 904

574 N.Y.S.2d 904

151 Misc.2d 820

Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants, v. The STATE of New York, Defendant.

Claim No. 70726 Court of Claims of New York.

July 31, 1991.

[151 Misc.2d 821] Lysaght, Lysaght & Kramer, P.C. (Joseph L. Decolator, Lake Success, of counsel), for claimants.

Robert Abrams, Atty. Gen. (Robert S. Hammer, New York City, of counsel), for defendant.

OPINION

GERARD M. WEISBERG, Judge.

On February 14, 1984, parolee George Agosto shot and killed Police Officer Thomas Ruotolo and seriously injured Officers Hipolito Padilla and Tanya Brathwaite as they attempted to apprehend him. Agosto, it is alleged, was at large because his parole officers violated section 259-i(3) of the Executive Law and section 8004.2 (9 NYCRR 8004.2) of the regulations promulgated thereunder by failing to report Agosto's arrest for burglary to the Parole Board. As a result, claimants filed a claim with this Court on March 25, 1985, naming the State of New York as the sole defendant.

As is asserted further, in 1979, Agosto had been sentenced concurrently to a term of from 5 to 15 years for manslaughter and 0 to 7 years for criminal possession of a weapon. After receiving credit for time served under a prior youthful offender adjudication, he became eligible for parole and was released on August 23, 1982. He was assigned to the Bronx West Parole Office.

Agosto reported to this parole office until July 5, 1983 when he was taken into custody by the police and charged with burglary and resisting arrest. Although his parole officers were notified of these events, they failed to report the violations to the Parole Board in alleged contravention of Executive Law § 259i-(3) and 9 NYCRR 8004.2.

It was claimants' theory that had the Board been notified, it would have revoked Agosto's parole, thereby preventing the tragedy. We understood this to raise two related causes of action: common-law negligence and one based on the alleged violation of the Executive Law and regulation 8004.2. We held that both failed to state a cause of action; the former based on the "fireman's rule" ¹ (see, Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770) and the latter based on a lack of duty. (Ruotolo v. State of New York, 141 Misc.2d 111, 114, 532 N.Y.S.2d 668, affd. 157 A.D.2d 452, 549 N.Y.S.2d 22, lv. denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619.)

Claimants appealed. During the pendency of their appeal, General Municipal Law § 205-e was enacted. (L.1989, ch. 346.) Claimants, in addition to arguing the error of our opinion, urged the applicability of this new section to their claim.

The Appellate Division, First Department, affirmed. (157 A.D.2d 452, 549 N.Y.S.2d 22, supra.) As to section 205-e, the Appellate Division held it inapplicable since it was not intended to be retroactively applied. The Court of Appeals denied leave to appeal. (75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619, supra.)

Subsequently, effective July 22, 1990, section 205-e was amended to provide for its retroactive application. (L.1990, ch. 762.) Since claimants' action was dismissed after January 1, 1987 because section 205-e was not then effective, timewise, claimants are clearly within the section. (Santangelo v. State of New York, 149 Misc.2d 171, 563 N.Y.S.2d 597.) Relying thereon and on CPLR 2221, they now move to renew their opposition to defendant's prior successful motion for summary judgment. The State first opposes this relief on the ground that it is procedurally defective.

We note that General Municipal Law 205-e specifies a procedure for bringing cases such as this before the Court: a new claim was to be filed. (See, note 5, supra; Santangelo v. State of New York, 149 Misc.2d 171, 563 N.Y.S.2d 597, supra.) As of the time this motion came before us, claimants had failed to do this. Be that as it may, section 205-e does not explicitly prohibit the procedure claimants have employed. Nor do we find such a prohibition to be implicit. Rather the obvious intent of the Legislature was to provide claimants' class with a day in court on their possible section 205-e claims. (See also, CPLR 104.) Thus, the question becomes, is claimants' motion timely under CPLR 2221.

Defendant points out that what is being argued is that the result here should now be different based on a subsequently enacted statute. This is a motion for reargument and not renewal. Moreover, the time within which such a motion may be made, to wit, the time to appeal, has long since expired. Defendant concludes that the motion is untimely.

We agree with the State that this is a motion for reargument and not for renewal. It is based on a change in the law. (See, e.g., Matter of Huie (Furman), 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642.) While CPLR 2221, which controls, does not specify the time within which such a motion must be made (Luming Cafe v. Birman, 125 A.D.2d 180, 508 N.Y.S.2d 444), case law has filled this void. The courts have decreed that the motion must be made within the time to take an appeal from the order to be reargued. (Supra.) The rule is based on the same rationale as res judicata; that is, once the time to appeal has run, the parties reasonably expect their rights and positions to have been finally determined. To allow a different rule would destroy the finality of judgments. (Matter of Huie (Furman), 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642, supra.)

Where, however, the Legislature had indicated that rights, although fixed may be redetermined, the Court of Appeals has allowed a motion to reargue even after the time to appeal had expired. (Weissblum v. Mostafzafan Foundation of New York, 60 N.Y.2d 637, 467 N.Y.S.2d 563, 454 N.E.2d 1306.)

Here, the amendment to section 205-e clearly indicates a legislative intent to reopen matters such as this notwithstanding that they may have been finally determined. The court-imposed time limit in CPLR 2221 therefore should have no application. We find the motion to be timely.

Defendant next cites Santangelo v. State of New York, 149 Misc.2d 171, 563 N.Y.S.2d 597, for the proposition that the retroactive application of section 205-e to the case before us would be unconstitutional. ² Santangelo involved a cause of action by police officers who were injured by an escaped mental patient. The action was against the State based on its institution's allowing the escape. ( Santangelo v. State of New York, 129 Misc.2d 898, 494 N.Y.S.2d 49, affd. 127 A.D.2d 647, 511 N.Y.S.2d 666, affd. 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra [hereinafter Santangelo I ].) The affirmance at the Court of Appeals' level was predicated on the "fireman's rule" which it extended to the police.

Pursuant to General Municipal Law § 205-e (as amended by L.1990, ch. 762, § 1), Santangelo was revived. (Santangelo v. State of New York, 149 Misc.2d 171, 563 N.Y.S.2d 597 [hereinafter Santangelo II ].) In Santangelo II, the State argued that retroactive application of 205-e would be unconstitutional.

The Santangelo II court first held that it had the jurisdiction to determine the constitutionality of the retroactive application of section 205-e to the case before it. It then found that the State had acquired final, vested rights by virtue of the judgment in Santangelo I dismissing the claim which had been affirmed by the Court of Appeals. The Santangelo II court also noted that the retroactive abrogation of vested rights is offensive to section 6 of article I of the New York State Constitution. It therefore concluded that section 205-e could not be constitutionally applied to the claimants before it.

While we agree with all of the stated premises above (see, e.g., Friedman v. State of New York, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 249 N.E.2d 369; Germania Sav. Bank v. Village of Suspension Bridge, 159 N.Y. 362, 54 N.E. 33), we find we must disagree with the unstated one, to wit, that the State of New York is to be considered the same as any other judgment holder with respect to New York State legislation. Since we cannot agree with that proposition, we cannot agree with Santangelo II 's conclusion.

In that regard, we see that in none of the cited cases was the State the defendant. Alternatively, in Sweeney v. State of New York, 251 N.Y. 417, 167 N.E. 519, the State was the sole defendant in a breach of contract action in the Court of Claims. Thereafter, the Civil Practice Act was amended to provide for the recovery of interest in that type of action. The Appellate Division held the statute unconstitutional in its retroactive operation on the ground that the effect was to deprive the State of property without due process of law.

The Court of Appeals reversed and stated: "There is no occasion to consider at this time whether the statute, in so far as retroactive, may be sustained against persons other than the State itself. Certain it is that the State which enacted it may not be heard to complain that the enactment is void as a violation of 'due process' ... The award of interest is not in any prohibited sense a charity or bounty. It has its roots in a reasonable conception of the demands of equity and justice...." (Sweeney v. State of New York, 251 N.Y. 417, 419-20, 167 N.E. 519, supra.) Thus, there is no constitutional prohibition against the New York Legislature's waiving of New York State rights, whether vested or otherwise, at least in the situation before us. (See also, Matter of Unseld, 44 Misc.2d 649, 254 N.Y.S.2d 744; Rieseberg v. State of New York, 40 Misc.2d 676, 243 N.Y.S.2d 887.)

We therefore reach the merits. Have claimants stated a cause of action under General Municipal Law § 205-e?

Focusing on the broad language contained in section 205-e, which makes actionable the violation of "any of the statutes, ordinances, rules, orders and requirements" of the federal, state or...