A woman who spent as much as five extra years in jail after a court clerk accidentally added a felony assault conviction to her record may pursue a negligence claim against the state, an appellate panel has ruled.

In April 2007, a Court of Claims judge found that Barbara Lapidus’ failure to contest the error constituted an intervening, superseding cause of her additional imprisonment, and granted the state’s motion for summary judgment.

Last week, the Appellate Division, Second Department, reversed, deeming the issue a factual one to be determined at trial.

“This is not a case where the alleged intervening act, as a matter of law, was independent of and divorced from the original negligence,” Justice Randall T. Eng ( See Profile) wrote for the unanimous panel in Lapidus v. State of New York, 2007-04752. “Rather, [Lapidus] never would have been placed in the position of having to admit or deny that she was a predicate felon had not a court employee mistakenly recorded on her court file that she had been convicted of assault in the second degree and sentenced to a term of imprisonment for that crime.”

The decision will be published Wednesday.

As noted by the panel, the unique facts of Ms. Lapidus’ case illustrate the Court of Appeals’ oft-repeated finding that the “concept of proximate cause [is] an elusive one, incapable of being precisely defined to cover all situations.”

By her own account, Ms. Lapidus, now 54, dropped out of school in seventh or eighth grade, and spent large swaths of the next 30 years addicted to cocaine, speed, crack and heroin.

In 1987, Ms. Lapidus was arrested after her then-boyfriend, Ruben Silva, stabbed her ex-boyfriend with a kitchen knife. Ms. Lapidus was released on her own recognizance, and never returned to court. Mr. Silva, however, went to trial, was found guilty of assault and was sentenced to 1 1/2 to 4 1/2 years in prison.

A court clerk then erroneously recorded on the court file jacket that Ms. Lapidus had also been found guilty and sentenced to the same term.

In 1997, following a brief clean period after she learned she was pregnant and gave birth to a son, Ms. Lapidus was living in a Lower East Side subway station and supported her drug habit through prostitution. That August, she was arrested for third-degree sale of a criminal substance. A jury convicted her, and the state filed a predicate felony statement, based on the report of her assault conviction.

At her arraignment, Ms. Lapidus failed to contest the prior conviction. She now attributes that decision to many factors, including her lack of education, her drug and health issues, her belief she may have been tried “in absentia” and her fear of provoking a harsher sentence.

As a second felony offender, she was sentenced to 4 1/2 to nine years for the drug offense, the mandatory minimum. When the Bedford Hills Correctional Facility inmate-record coordinator requested a copy of the commitment order for the assault conviction, a sentencing clerk forwarded a duplicate without confirming its accuracy, thereby repeating the first clerk’s mistake.

The Department of Correctional Services then added the assault sentence to her drug sentence, resulting in a total term of six to 13 1/2 years.

After the parole board rejected her application, Ms. Lapidus sent letters about her case to numerous pro bono agencies, including Columbia Law School’s Prisoners and Families Clinic, where two students, Alison Wilkey and Michelle S. Maloney, investigated her claim that she had never, in fact, been convicted of assault.

The state eventually admitted its error, and on April 20, 2004, Ms. Lapidus was finally arraigned on the 1987 assault charges. She pleaded guilty, and was sentenced to 10 days in prison. Her drug-sale sentence, now a first felony offense, was reduced to one to three years. She was released in May 2004, having been imprisoned over six years–three years longer than the maximum she would have faced but for the assault conviction, five years longer than the minimum.

In January 2005, eight months after her release from prison, Ms. Lapidus filed the present negligence suit.

Judge Faviola dismissed the claim, holding that Ms. Lapidus’ failure to controvert the predicate felony statement constituted an intervening and superseding act, which severed the “causal chain” between the state’s alleged negligence and her injuries, namely her three to five extra years in prison.

Ms. Lapidus appealed and, in May, Justices Eng, Robert A. Spolzino ( See Profile), Joseph Covello ( See Profile) and Thomas A. Dickerson ( See Profile) heard oral arguments.

Last week, the unanimous panel reinstated Ms. Lapidus’ claim.


Eighty years after Chief Judge Benjamin Cardozo set out to clarify the concept of foreseeability in Palsgraf v. Long Island Railroad, 248 NY 339 (1928), Ms. Lapidus’ case demonstrates how reasonable minds can still stake out starkly different positions on questions of causation.

To determine whether the outcome was foreseeable in the present case, Ms. Lapidus contended, the court should have considered its unique facts, such as her mental and physical condition. She also argued that her failure to contest the errant conviction could not be considered an intervening act as it was not independent of the first clerk’s error.

The state, in turn, claimed, among other defenses, that Ms. Lapidus’ excessive confinement was not a natural result of any mistakes by the courts.

“[H]aving chosen to ‘game’ the system on a gamble that the length of incarceration would be less if the court did not know the truth,” the state argued, Ms. Lapidus should not be allowed to pursue a complaint.

The Second Department found that because foreseeability is fact specific, the issue here must be determined at trial, not by summary judgment.

“Since the factors which are relevant to an assessment of legal cause vary depending on the facts of the particular case, it is ordinarily ‘for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established,’” Judge Eng wrote.

Here, the judge added, “we find that factual questions are presented as to whether Lapidus’s failure to controvert her status as a second felony offender at her sentencing in 1998 was either so improbable and unforeseeable as to constitute a superseding event breaking the causal connection between the alleged negligence of the court employees and her service of an excessive period of confinement, and/or rises to such a level of culpability as to replace the defendant’s alleged negligence as the legal cause of the accident.”

Charles D. Abercrombie and Mariana Olenko of Seiff Kretz & Abercrombie represented Ms. Lapidus.

The saddest by-product of the court’s error, Mr. Abercrombie said, is that when Ms. Lapidus–who is now clean and living in a “communal support group” on a farm in upstate New York–learned that she faced as much as 13 1/2 years in prison, she gave her son up for adoption.

“I like that the court . . .agreed with our argument that in evaluating the facts here the court needs to consider her background, history, education level and condition at the time of the 1999 drug conviction sentence, where she didn’t challenge her prior conviction,” Mr. Abercrombie said. “The trial court said it didn’t need to consider that.”�

Assistant Attorneys General Peter H. Schiff and Michael S. Buskus represented the New York Attorney General’s Office. A spokesman said that the office is reviewing the decision.