The following papers were read on the defendant's motion to dismiss the claim
and on the claimant's cross motion seeking permission to file a late claim:
Notice of Motion, Affirmation in Support and Exhibits annexed; Notice of [Cross]
Motion and affidavit; Affirmation in Further Support of Motion and in Opposition
to Claimant's Motion and Exhibits annexed; Claimant's Verified Answer and
Exhibits annexed. Filed paper: Claim.
The claimant, a physician with a specialty in psychiatry, was appointed,
pursuant to County Law §722-c, by Order of the Kings County Supreme Court,
to provide psychiatric services to an indigent defendant in a criminal case.
According to the claim, which sounds in contract, the trial court judge did not
approve payment for all the services the claimant rendered, and with respect to
some of the services for which payment was approved, the amount was less than
the rate specified in the Order appointing him. He seeks to recover the amount
he requested but was not paid.
The defendant moves to dismiss the claim on the ground that it was served by
registered mail, and not personally or by certified mail, return receipt
requested, as required by Court of Claims Act §11(a); and on the ground
that the actions of the officials named in the claim are protected by the
doctrine of judicial immunity. The claimant opposes the State's motion on both
grounds, but has cross moved for permission to file a late claim in the event
that the claim is dismissed for improper service.
. Although stated as a cause of action in contract, the import of the claim
herein is to seek a determination of the amount he should have been paid for
the services he provided. The effect, therefore, of entertaining the claim
would be to circumvent two Court of Appeals decisions which held that the trial
judge's discretion in such instances is unreviewable, whether on an application
to increase the amount (Matter of Werfel v Agresta
, 36 NY2d 624), or on
one to reduce it (Matter of Director of the Assigned Counsel Plan of the City
of New York [Bodek]
, 87 NY2d 191), except by way of administrative
, at 627), the Court stated that an attorney
would be "entitled to adjustment of the allowance made to him by application
through the several layers of judicial administration, that is, to the
appropriate Administrative Judges and even to the Administrative Board of the
court system." In Bodek
, at 194), the Court stated that
"to the extent that the trial courts' unreviewable discretion produces truly
anomalous consequences or patterns of abuse in particular situations, the
problem can and should be addressed through the available administrative
The allegations of the claim indicate that the claimant resubmitted his
requests for payment to the trial judge, without any result, and in connection
therewith he unsuccessfully sought the intervention of the Administrative Judge
for the Second Judicial District.
It would seem, therefore, that the claimant has sought the only review which
the Court of Appeals has determined is available to him, and is precluded from
further review by way of a suit for damages against the State. Indeed, the
underlying premise of the claim, which seeks payment in full of the amount he
requested, would negate the exercise of any discretion by the trial court in the
matter, which is clearly at odds with the Court of Appeals view in Werfel
Moreover, while the Court of Appeals did not address the issue of judicial
immunity in those cases, where the analysis and discussion were in the context
of the issue of appellate review, the issue of judicial immunity is clearly
implicated in the claim herein.
It is the claimant's position that the trial court judge's determination of his
compensation was an entirely administrative act, which is not protected by
judicial immunity. But in Werfel (supra, at 626), the Court
stated that the responsibility for setting compensation, albeit administrative
in nature, is "internal to, and performed entirely within the context of, the
judicial offices involved." As such it is protected by judicial immunity.
See, e.g. Weiner v State of New York, ___ AD2d ___, 2000 WL 769263 (First
Finally, the claimant's reliance upon this Court's decision in Wells v State
of New York (Court of Claims, Claim Nos. 85692 & 86127, filed September
16, 1998) is misplaced. The allegations in this claim are distinguishable from
Wells, where damages were awarded as the result of the failure to process
the vouchers for payment (see, Wells v State of New York, 267 AD2d 179),
not the failure to approve the amounts submitted.
The gravamen of the basis for the relief he seeks is the claimant's assertion
that he was not paid for the services he provided, as he expected to be.
Whatever the ultimate merit of his claim, it is quite clear that, under
controlling law, he has no adequate remedy by which to seek that relief. It is
not as clear that he, and others in similar situations, should not have one. In
his concurrence in Bodek, (supra, at 197), Judge Bellacosa noted
that "the lack of any judicial review or appropriate check-and-balance of
unilateral trial court action in these public services and public fiscal matters
is unfortunate." Although the statement was made with respect to an
application to reduce the amount of compensation determined by the trial court,
its logic applies equally to an effort, such as the claimant's, to increase the
In accordance with the foregoing, the defendant's motion is granted. The claim
is dismissed for lack of subject matter jurisdiction. The claimant's cross
motion seeking permission to file a late claim is denied as moot.