Opinion
# 2011-049-106 Claim No. 111053
12-08-2011
BICET v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2011-049-106 Claimant(s): RICARDO BICET Claimant short name: BICET Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111053 Motion number(s): Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Ricardo Bicet, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 8, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By a claim filed June 23, 2005, claimant Ricardo Bicet, an inmate proceeding pro se, alleged that on June 4, 2005 he sent to the mailroom at Southport Correctional Facility (Southport) a letter to be forwarded to his father in Cuba. According to the claim, the mailroom returned the letter to claimant, on the ground that it could not send it because his father was not on Bicet's "mailing list." Bicet sought damages for this action.
A trial in this matter was scheduled for October 25, 2011 via videoconference at Elmira Correctional Facility (Elmira). Prior to trial, Bicet wrote the Court twice - first to ask for information on his claim, and then after the Court provided him with a copy thereof, stating that he "need[ed] help," without specifying what sort of assistance he required.
On the day of trial, Bicet for the first time requested a Spanish language interpreter, and an attempt was made to locate one at Elmira. When that effort was unsuccessful, and it being apparent that Bicet had some difficulty speaking and understanding English, the Court indicated to Bicet that it could adjourn the proceeding to another day, on which he could go forward with an interpreter. Bicet indicated that he wished to proceed without such a delay. The Court again asked if claimant wished for an adjournment when, at the beginning of Bicet's testimony, he made statements that indicated that he had initially been confused about certain crucial details of the proceeding.Nonetheless, he again chose to go forward.
Specifically, his testimony made clear that he did not initially understand that the Assistant Attorney General was his adversary in the proceeding, and that Bicet would not be represented by counsel.
In his testimony, Bicet stated the following: at some unspecified time, a counselor at Southport informed Bicet that his father in Cuba had died. Understandably, he found this news to be crushing, but learned from later correspondence with his brother and ultimately his father, that this news had not been true. The basis of Bicet's present action, he stated, was that he had been "lied to" by this counselor.
The Court told Mr. Bicet that this was different from what was stated in his claim. Under questioning by the Court, Bicet stated that he did not personally write his claim,and the allegations contained therein are not what he is now asserting. He subsequently repeated his disavowal of the allegations in his pleading multiple times. He also denied that the prison had, in fact, refused to mail a letter to his father. Although Bicet stated that sometimes his father did not receive letters he sent, or those letters were returned to him, "everyone has the same problem."
This is apparent from the handwriting on the document, which does not match that of Bicet's letters.
In short, in his testimony Bicet denied the substance of the claim he filed, and instead asserted a different cause of action that he had not previously placed before the Court. Nor had he given defendant notice of that claim. Moreover, and notwithstanding Bicet's language difficulties, such statements by Bicet were made repeatedly and unequivocally. As a result, Bicet's claim must be dismissed. He failed at trial to meet his burden of proving the allegations set forth in his claim (that the prison refused to mail his letter) by a preponderance of the credible evidence (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]), since his sworn testimony denied those allegations.
As to the allegations he did in fact make in his testimony (that he was falsely informed of his father's death) those were never included in a claim filed in this Court. There are no grounds on which Bicet could proceed on a cause of action entirely different from the one set forth in his claim. The Court has reviewed the six other Court of Claims actions that this claimant has filed, to determine if he was simply confused as to which claim was at issue. No filing by Bicet, however, contains the allegations he made at trial. Further, as noted, Bicet was provided a copy of the claim prior to the trial, so he was informed as to the allegations he had made. And since the evidence at trial presented an entirely different set of facts and cause of action from that set forth in his claim, the Court cannot permit Bicet to amend his claim to conform to his proof, in accordance with CPLR § 3025(c). The new allegations do not relate back to the original claim, and would clearly be time-barred (see CPLR § 203[f]; Helmand v Webb, 305 AD2d 980, 980-81 [4th Dept 2003]).
Finally, dismissal is not precluded here by 22 NYCRR § 217.1(a), which provides: "In all civic and criminal cases, when a court determines that a party or witness . . . is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings, the court shall appoint an interpreter." While Bicet's difficulty with English required frequent repetition and clarification, I find that his language proficiency was sufficient for him to participate meaningfully in his trial. Most important, there was no confusion as to the central, material element of his testimony. He stated repeatedly that the basis for his claim was that he had been misinformed that his father had passed away, and that the allegation actually presented in his claim - that prison authorities prevented him from writing his father - was not accurate. Bicet reaffirmed these statements again and again, and they provide ample basis for dismissal of his claim.
For that reason, I need not decide whether Bicet's expressed desire to go forward notwithstanding the absence of an available interpreter would otherwise have been sufficient to waive his rights under this regulation, or whether such waiver is permissible or appropriate (cf. Selzer v Baker, 295 NY 145, 149 [1946] [litigant may "waive a statutory or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved . . . "]).
In light of the foregoing, claim no. 111053 is dismissed in its entirety.
Let judgment be entered accordingly.
December 8, 2011
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims