Letter to the Court dated February 18, 2000 from Timothy P. Mulvey, Assistant
Attorney General 5
Reply from Claimant, with Exhibit 6
Filed Papers: Claim
Court of Claims Act, § 11(a) requires that a claim be served upon the
Attorney General either by personal delivery or by certified mail, return
receipt requested. This is a jurisdictional prerequisite to the maintenance of
a claim and as such, must be strictly construed (Greenspan Bros. v State of
New York, 122 AD2d 249).
In his affirmation, the Assistant Attorney General avers that this claim was
served upon the Attorney General on January 13, 2000, by regular U.S. mail. A
copy of the envelope in which the claim was received by the Attorney General has
been submitted with the motion papers (Exhibit A to Items 1, 2), and this
envelope indicates that postage of $.55 was affixed.
In his "Opposition" (Item 4), however, claimant states that following his
initial attempt at service of the claim, and prior to defendant's motion herein,
he realized his service was possibly defective and therefore re-served a copy of
his claim upon the Attorney General by certified mail, return receipt requested.
He has submitted with his response papers copies of a receipt for certified
mail, return receipt requested, and an acknowledgment of service card. The
card, although unsigned, is stamped "Received" on "January 31, 2000", by the
"NYS Office of the Attorney General", "Office of Legal Records". Claimant
therefore has established to the satisfaction of this Court that his claim was
served in compliance with the requirements of § 11(a).
Defendant, however, also argues that claimant has failed to state a cause of
action upon which relief can be granted by this Court. The underlying claim
alleges that an acting New York State Supreme Court Justice, Justices of the
Appellate Division, Fourth Department, and Chief Judge Judith S. Kaye of the
Court of Appeals, all denied claimant relief pursuant to CPLR, Article 70.
Specifically, as set forth in his claim, claimant alleges that on December 9,
1996, Acting Supreme Court Justice Peter E. Corning denied claimant's petition
for a writ of habeas corpus. He then alleges that the Justices of the Appellate
Division, Fourth Department, unanimously affirmed Judge Corning's decision on
November 19, 1997. He further alleges that Chief Judge Judith S. Kaye of the
Court of Appeals then denied claimant's motion for leave to appeal to the Court
of Appeals on February 24, 1998. Claimant contends that by these actions, he
has been subjected to continued unlawful imprisonment.
It is well settled, however, that Judges of this State are absolutely immune
from civil liability for their judicial acts, and the State is not liable for
any alleged error of a judicial officer (Murray v Brancato, 290 NY 52;
Lombardoni v Boccaccio, 121 AD2d 828).
In his claim, claimant further contends that his constitutional rights were
violated by these New York State Judges in denying his habeas corpus
application. He also attempts to assert a claim of forfeiture in his motion
papers, pursuant to CPLR § 7003(c). No matter how claimant attempts to
frame his claim, however, his cause of action is based solely upon actions taken
by the various New York State Judges performing their judicial functions. Set
forth above, such actions are entitled to immunity, and are not properly the
subject of a claim in this Court.
Accordingly, it is
ORDERED, that Motion No. M-61187 is GRANTED; and it is further
ORDERED, that Claim No. 101781 is hereby DISMISSED.