Opinion
07-30-2014
F. JAVIER MONREAL, MD v. THE STATE OF NEW YORK
F. JAVIER MONREAL, MD, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York Anthony Rotondi, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted. Court of Claims lacks jurisdiction over claim for reinstatement of revoked medical license and consequent loss of income, as such would require review of administrative action or inaction, which is subject to review in Supreme Court pursuant to CPLR article 78. Further, claim was not timely served or filed.
Case information
| UID: | 2014-038-532 |
| Claimant(s): | F. JAVIER MONREAL, MD |
| Claimant short name: | MONREAL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to name the State of New York as the only proper defendant on this claim. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124000 |
| Motion number(s): | M-84953 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | F. JAVIER MONREAL, MD, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim is brought by claimant, pro se, a physician/neurologist whose license to practice medicine in New York was revoked effective July 20, 2007. The instant claim is the latest in a series of judicial actions and proceedings by which claimant has, pro se, sought reversal of the administrative determinations of the Office of Professional Medical Conduct (OPMC) to revoke his license, and has also sought money damages. An action in Supreme Court seeking damages for alleged harassment of claimant by OPMC and others during the administrative investigation was dismissed because it was commenced in a court that lacked jurisdiction over such a claim and also because the complaint failed to state a cause of action (see Monreal v New York State Dept. of Health, 38 AD3d 1118 [3d Dept 2007]). As alleged in the instant claim, claimant unsuccessfully sought judicial relief addressed to OPMC's efforts to obtain his office records during the investigation (see Claim, pp. 8-9). After revocation of his license, claimant unsuccessfully sought judicial review pursuant to CPLR article 78 (see Matter of Monreal v Administrative Review Bd. of State Bd. for Professional Med. Conduct, 52 AD3d 986 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). A claim in this Court, in which claimant alleged that he was slandered and libeled in the course of the administrative and prior judicial proceedings, was dismissed upon defendant's motion for summary judgment because the statements made in the prior proceedings were all protected by absolute or qualified privilege (see Monreal v State of New York, UID No. 2008-038-583 [Ct Cl, DeBow, J., Feb. 25, 2008]). The instant claim alleges that from September 2008 through January 2011, claimant wrote letters to OPMC, the Attorney General, the New York State Education Department, and the Public Integrity Bureau of the Attorney General's office, without response. Claimant filed an action in federal court, which was dismissed upon the defendant's motion to dismiss the amended complaint, notwithstanding the leniency that was afforded to claimant as a pro se plaintiff opposing that motion (see Monreal v State of New York, et al., 2012 WL 2571256 [ND NY 2012]), and claimant's ensuing federal appellate practice was unfruitful (see Monreal v New York, 518 Fed Appx 11 [2d Cir 2013] [affirming ND NY], cert denied ___ US ___, 134 S Ct 297 [2013], rehearing denied ___ US ___, 134 S Ct 729 [2013]). Although the instant claim is replete with allegations regarding the conduct of OPMC and others during administrative and judicial proceedings from 2004 forward, claimant asserts that this claim is limited to the period beginning on July 20, 2010, the date three years after the revocation of his license and which he alleges to be the date on which he was entitled to reinstatement of his license. The claim alleges that defendant(s) have failed to respond to his correspondence or otherwise communicate with him regarding the reinstatement of his license, and he seeks "to gain a return [of] my NY Medical Lic. #118576" (Claim, p.5). He also demands damages for the consequent loss of income since July 20, 2010. Defendant moves in lieu of answer to dismiss the claim on the grounds that this Court lacks jurisdiction to provide the relief claimant seeks, and that the claim is untimely. Claimant has opposed the motion, both in writing and at oral argument that was conducted on May 21, 2014.
Claimant's objection to defendant's motion on the ground that is was not timely made is without merit. Claimant asserts that the motion should have been made within 30 days of service of the claim, but that it was not received by him until 35 days thereafter (see Claimant's Correspondence, dated April 9, 2014). A motion to dismiss pursuant to CPLR 3211 (a), such as this one, may be made "[a]t any time before service of the responsive pleading is required" (CPLR 3211 [e]). As applicable in this Court, "service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds" (22 NYCRR § 206.7 [a]). This claim was initially served upon defendant on March 5, 2014 (see Rotondi Affirmation, ¶ 4, Exhibit A), but without a verification as required by Court of Claims Act § 11 (b). The pleading was immediately rejected by defendant pursuant to CPLR 3022 as unverified (id., Exhibit B), and defendant was therefore entitled to "treat [the claim] as a nullity" (CPLR 3022). On March 12, 2014, claimant served upon defendant a verification, but did not re-serve the claim (id., Exhibit C). For purposes of this motion, defendant does not object to the separate service of the claim and its verification, but under these circumstances, the verified claim is deemed served on March 12, 2014. Defendant's period within which to serve a responsive pleading therefore expired 40 days after March 12, 2014, or on April 21, 2014. The affidavit of service of defendant's motion papers demonstrates that the motion was mailed, and thus served, on April 17, 2014 (see CPLR 2103 [b] [2] and [c]), the motion was filed in the Court of Claims on April 18, 2014, and claimant does not assert that it was served any later than April 21, 2014. Thus, the motion was not untimely made.
At the threshold, the Court is compelled to note that it is not unsympathetic to the frustration that this pro se claimant may have experienced because his many legal efforts to avoid and undo the revocation of his medical license have been rebuffed, and is well aware that he feels that injustice has been visited upon him because of perceived flaws in OMPC's revocation process and his subsequent losses in judicial forums. However, although claimant's attempts to challenge OPMC's investigation and revocation of his license have been unsuccessful due to what claimant characterizes as "technicalities" or failures to consider his evidence, the Appellate Division found:
"it was not an error of law or an abuse of discretion for the [OMPC] ALJ to treat plaintiff[/claimant]'s failure to appear for the hearing and refusal to submit an answer to the charges as an admission to those charges. It is not disputed that petitioner had abundantly ample notice of the charges and the hearing"
(Matter of Monreal v Administrative Review Bd. of State Bd. for Professional Med. Conduct, 52 AD3d at 987). Subsequent to claimant's lack of appearance in the administrative proceeding, he has consistently asserted incorrect causes of action, in the wrong court, at the wrong time. While a layman such as claimant may characterize jurisdictional matters and statutes of limitations as mere "technicalities," such matters go to the very power of a court to entertain his complaints, petitions, or claims.
As a further preliminary matter, the Court notes that the instant claim is founded upon claimant's assertion that he was entitled to the return or reinstatement of his medical license three years after it was revoked by OPMC, but his claim and submissions on the motion do not demonstrate the source of that entitlement, especially in light of the fact that "revocation" - as compared to "suspension" - connotes permanency. Nevertheless, the Court will discuss the issues raised by defendant upon the fundamental allegation that claimant "was eligible to be re-licensed" on July 20, 2010, and that the relief that he seeks in this Court is "the return of my license . . . 'without blemish' " (Claim, p. 19 [emphasis omitted]). More specifically, claimant requests "that my Medical License be re-instituted ASAP . . . even retroactive to the mandatory (7/20/2010) and that reparation for income losses of 3&1/2 years (instead of 7 years) be ordered" (id. at 20).
Defendant correctly contends that this claim must be dismissed for lack of subject matter jurisdiction. The law is succinctly stated:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" ' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])"
(City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]). Although this analysis may, in some cases, be difficult to apply, such is not the case here because it is manifest that the fundamental and primary relief sought by this claim is the restoration of claimant's license, retroactive to July 20, 2010. While claimant may have sustained lost income because he did not possess his license thereafter, this is not a claim seeking damages flowing from an appropriation of real property, a breach of contract, or tortious conduct. The essential nature of the claim is to recover claimant's medical license, and an award of damages to claimant may follow only after the Court has reviewed the propriety of the actions or omissions of OPMC with regard to the restoration of claimant's medical license. As stated above, "review of such [a] determination[] [is] properly brought only in Supreme Court in a CPLR article 78 proceeding" (id.).
Further, even if the claim fell within the subject matter jurisdiction of the Court of Claims, it would be dismissed on separate jurisdictional grounds because it is untimely. A notice of intention to file a claim or the claim seeking damages flowing from the unintentional or intentional conduct of the State must be filed with the Clerk of the Court and served upon the Attorney General within 90 days of accrual of the claim (see Court of Claims Act §§ 10 [3], 10 [3-b] and 11 [a]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Assuming that this claim accrued on July 20, 2010, the date on which the claim alleges that claimant's license should have been restored, but was not, a notice of intention or the claim itself was required to have been filed and served within 90 days, or not later than October 18, 2010. Claimant has not demonstrated that a notice of intention was ever served, and he does not dispute that this claim was not served and filed until March 2014. Claimant's implicit contentions that the time within which to serve and file this claim was tolled until December 9, 2013 when the United States Supreme Court denied his petition for review in the related but separate federal action of Monreal v New York, or tolled by his efforts to correspond with defendant subsequent to July 20, 2010 are unavailing for several reasons, but primarily because the jurisdictional filing and service requirements of the Court of Claims are not statutes of limitations that are amenable to tolling.
In sum, notwithstanding claimant's plea for consequential damages flowing from the absence of his medical license, the contention that defendant should have but did not restore his medical license is reviewable in Supreme Court pursuant to CPLR article 78, and this Court lacks subject matter jurisdiction. Further, even assuming the claim fell within the subject matter jurisdiction of the Court of Claims, the claim was not timely filed and served, thus depriving this Court of jurisdiction. Accordingly, it is
ORDERED, that defendant's motion number M-84953 is GRANTED, and claim number 124000 is DISMISSED.
July 30, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 124000, filed March 5, 2014;
(2) Correspondence of F. Javier Monreal, MD, dated April 9, 2014;
(3) Claimant's [Anticipated] Reply to the Defendants' Invalid Defense and Proposal for a
Negotiated Settlement, dated April 5, 2014;
(4) Notice of Motion to Dismiss, dated April 17, 2014;
(5) Affirmation in Support of Anthony Rotondi, AAG, dated April 17, 2014, with Exhibits A-C;
(6) Affidavit of Service of the Notice of Motion to Dismiss and Affirmation in Support, sworn to
April 17, 2014;
(7) Correspondence of F. Javier Monreal, MD, dated April 21, 2014;
(8) Correspondence of F. Javier Monreal, MD, dated April 25, 2014;
(9) Correspondence of F. Javier Monreal, MD, dated May 21, 2014 (received as Court Exhibit 1
during proceedings on May 21, 2014);
(10) Correspondence of F. Javier Monreal, MD, dated May 21, 2104;
(11) Correspondence of F. Javier Monreal, MD, dated June 4, 2014;
(12) Correspondence of F. Javier Monreal, MD, dated July 23, 2014.