By: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:
September 26, 2001
See also (multicaptioned case)
The following papers were read on the instant motions to dismiss the Claims:
Claim 102743/M-62866 Notice of Motion and Supporting Affirmation of Assistant Attorney General Belinda A. Wagner filed December 20, 2000, with annexed Exhibit A (Wagner Affirmation);
“Letter of Opposition” of Christopher Dozois dated January 10, 2001, with annexed Exhibits 0114-0154 (Dozois Letter);
Reply of Assistant Attorney General Belinda A. Wagner received January 17, 2001 (Wagner Reply).
Claim 103831/M-63177 Notice of Motion and Supporting Affirmation of Assistant Attorney General Risa L. Viglucci filed March 6, 2001 (Viglucci Affirmation);
“Letter of Opposition” of Christopher Dozois filed April 30, 2001, with annexed Exhibits 0155-0202 (Dozois I);
“Letter of Opposition” of Christopher Dozois received May 4, 2001, with annexed Exhibits 0203-0263 (Dozois II);
“Letter of Opposition” of Christopher Dozois received May 15, 2001, with annexed Exhibits 0264-0281 (Dozois III);
Reply of Assistant Attorney General Belinda A. Wagner filed May 11, 2001 (Wagner II).1 Filed Papers: Amended Claim No.102743 filed December 7, 2000; Decision and Order (M-62162) filed October 31, 2000; and Claim No.103831 (Claim II) filed February 14, 2001.
In a Decision and Order filed October 31, 2000, this Court denied defendant’s motion to dismiss Claim No. 102743 and instead, directed the pro se claimant to file an amended claim. The Court explained in detail the pleading requirements, cautioned claimant that he was being afforded “one further attempt to properly plead his claim” and stated its expectation for a clear and concise document. Notwithstanding the Court’s guidance, claimant filed an Amended Claim nineteen pages in length, single spaced, albeit with numbered paragraphs. The Amended Claim seeks compensation for defendant’s non-consensual use of claimant, through, inter alia, mind control, in defendant’s “Master Plan ...to head off and Infiltrate a conspiracy against America.” (Amended Claim, ¶ 44).
Defendant moves to dismiss the Amended Claim (Claim No. 102743) as being untimely and for failing to state a cause of action (Wagner Affirmation, ¶¶ 5, 6 and 8).
Claim II, filed while the motion to dismiss the Amended Claim was sub judice, alleges tortious conduct by two assistant attorneys general committed in litigating the earlier filed Amended Claim. Claimant asserts an illegal motion was made, perjury committed and a false sense of out-of-court negotiations was conveyed thereby resulting in his injury.
Defendant separately moves to dismiss Claim II as being premature and for failing to state a cause of action (Viglucci Affirmation, ¶¶ 7, 8 and 9).
Claimant’s opposition papers in M-62866 consisted of fifty-six (56) pages. Claimant’s opposition papers in M-63177 arrived in three instalments, the first, received April 30, 2001 was comprised of seventy-eight (78) pages; the second, received May 4, 2001 was comprised of forty-eight (48) pages; and the third, received May 15, 2001, was comprised of twenty-seven (27) pages. Each submission was handwritten with unnumbered single spaced paragraphs. The exhibits included, inter alia, newspaper clippings, website printouts, court documents and letters.
No summary of claimant’s submissions could adequately convey the Gordian knot he has woven as the basis for and explanation of his claim or the sincerity with which claimant writes. In just one submission his maundering has included, inter alia, MKULTRA2, former FBI director Louis Freeh, the Grateful Dead, Matriarchal Society, cloud seeding, SUNY Albany, programming by satellite, Congress, the towns of Niskayuna and Guilderland, drug distribution, S & M Sex Clubs, countless professors, the Nazis, human implantation of bio-telemetry devices, hypnosis and the DEA (Dozois Letter). In a subsequent submission, claimant asserts the resignation of FBI Director Freeh is connected to the filing of his opposition papers, and ties together events from 1978 in Oregon through Timothy McVeigh, Columbine, Bill Clinton, Monica Lewinsky and George Bush (Dozois II). These people, places and events are purportedly evidence that claimant has been the non-consenting subject of mind control, programmed to be a force for good and destroyed by the forces of evil, resulting in emotional and physical injury.
Pursuant to Court of Claims Act § 10 (3) claims sounding in tort must be served and filed within ninety days of accrual unless a claimant has served a notice of intention to file a claim. Claimant makes no allegation that a notice of intention to file a claim was timely served, therefore, the Court is constrained to find timely only those causes of action, if any, accruing in ninety days preceding July 17, 2000. As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see, Alston v State of New York, 281 AD2d 741; Crair v Brookdale Hosp. Med. Ctr., Cornell Univ., 259 AD2d 586, aff’d. 94 NY2d 524; Voulgarelis v State of New York, 211 AD2d 675).
Defendant asserts that all causes of action accrued in 1998 or 1999 (Wagner Affirmation, ¶ 5) and therefore are untimely filed. Claimant, while admitting he knew he was “an experimentation victim in 1999” ( Dozois Letter, p. 3), asserts, without any factual support, that the wrongs are continuing (Amended Claim, second ¶ 4) and that he did not draw “a reasonable conclusion that it was the Defendant” ( Dozois Letter, p. 3), until “well within the time frame of July 17, 2000” (Id.).
The expression “claim accrues” is synonymous with “damages accrue”, (see, Bronxville Palmer v State of New York, 36 AD2d 647; Dufel v State of New York, 198 App.Div.97, 102; see also, Otis Elevator Co. v State of New York, 52 AD2d 380) and a claim accrues when damages are reasonably ascertainable (Inter Power of New York, Inc. v State of New York, 230 AD2d 405, 408). In the instant case, even under the most generous reading of the Amended Claim, the claimant could have determined his damages in 1999.3 The fact that the claimant, for one reason or another, chose not to ascertain his damages at that time is irrelevant (Greenspan Brothers v. State of New York, 122 AD2d 249, 250).Accordingly, the Court finds that Claim No. 102743 was untimely filed.
Even if the Court were, assuming arguendo, to find the claim timely filed, Claim No. 102743 would nevertheless be dismissed for failing to state a cause of action. In New York, the mere “fact a claim has [n]ever before been accepted by a court is not in itself an unscalable barrier”( Williams v State of New York, 18 NY2d 481). However, the Court has carefully reviewed claimant’s voluminous submissions and, notwithstanding the Court’s earlier direction to claimant, finds them to be nothing more than “a confusing discourse of conclusory allegations . . . from which it is impossible to decipher a viable cause of action” (Hodge v State of New York, 213 AD2d 766, 768; see also, Doran v McGinnis, 158 F.R.D. 383, 388 [dismissing plaintiff’s claim of implantation of a mind control device as “nothing less than preposterous”]).
Having dismissed Claim No. 102743, the Court must now address the merits of defendant’s motion to dismiss Claim No. 103831.4
Claimant’s assertion - that an illegal motion was made by defendants - is offered without legal authority and is without merit. The motion, which was made following the service of the amended claim, was properly before the Court (see, generally, Seigel, New York Practice, § 272). Claimant’s further allegation that defendant caused him a complete emotional breakdown by requiring him to “repeat recitation of early childhood trauma” (Claim II, ¶ 2) is misplaced. This Court, instead of dismissing Claim No. 102743, directed claimant to provide a more definite statement and file an amended claim (Decision and Order, p. 4). The impact of that Order can neither be laid at the defendant’s doorstep nor does it provide the basis for a cause of action.
Turning next to claimant’s misguided allegation that Assistant Attorney General Wagner committed perjury, it is fundamental that at common law actions to recover damages in tort for alleged perjury committed in a prior action or proceeding do not lie (Alexander v City of Peekskill, 80 AD2d 626, 627; Newin Corp. v Hartford Acc. & Ind. Co., 37 NY2d 211, 217; Sacks v Stecker, 60 F.2d 73, 75; Yaselli v. Goff, 12 F.2d 396, 403, aff’d. 275 U.S. 503, 70).
Lastly, claimant’s allegation that he was led to “false hopes of out of court negotiations” likewise does not give rise to a cause of action or claim against the defendant. Consistent with the courts' favor of the settlement of disputes (Daniel v Long Island Univ., 184 AD2d 350,
352, 585 NYS2d 349), settlement discussions are encouraged, as a matter of judicial policy, as a means of resolving litigation in the spirit of compromise, and statements made in the course of settlement negotiations are presumptively privileged (Caplan v Winslett, 218 AD2d 148, 152 153; Grasso v Mathew, 164 AD2d 476, lv denied 78 NY2d 855). As the Court of Appeals stated in Andrews v Gardiner, 224 NY 440, 445, “counsel are privileged in respect of any statements, oral or written, made in judicial proceedings, and pertinent thereto.” For this Court, it necessarily follows that counsel’s statements of a possibility of “negotiations” are likewise privileged. Moreover, the timing of any offer of negotiations did not cause claimant any injury or prejudice him in the instant litigation as he had already filed his claim (see, Terry v Long Island Railroad, 207 AD2d 881) and he had ample opportunity to address the motion to dismiss in Claim No. 102743.
For the foregoing reasons, defendant’s motions to dismiss Claim No. 102743 and Claim No. 103831 are GRANTED in their entirety.
September 26, 2001
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims
1 The cause of action in Claim No. 103831, which was filed while the motion to dismiss Claim No. 102743 was sub judice, has its alleged origins in the actions of Ms. Wagner in Claim No. 102743. For that reason, the Court advised the parties it would consider the motions together.
2 MKULTRA was a project of the Central Intelligence Agency investigated by Congress in 1977. For a detailed discussion of the program and its investigation see Kronisch v. U.S., 1997 Westlaw 907994 (SDNY, Woods, J.), aff’d in part, vacated in part, 150 F.3d 112 (2nd Cir., 1998).
3 The voluminous submissions do not permit the Court to fix a specific date in 1999. However, by accepting Claimant’s statement that he knew he was a victim in 1999 ( Dozois Letter, p. 3), the Court has given the pro se Claimant the benefit of a most expansive reading of when his claim accrued.
4 Defendant had correctly asserted that the allegations set forth in Claim Number 103831 were not ripe as the underlying proceeding, Claim 102743 was still pending before the Court.