New York State Court of Claims

New York State Court of Claims

SWAIN v. THE STATE OF NEW YORK, #2000-015-090, Claim No. 100137, Motion No. M-62027


Following reversal on appeal of claimant's criminal conviction he filed a claim for unjust conviction and false imprisonment. Claimant later moved for permission to amend claim and for late claim relief seeking to add a cause of action for negligence against the Appellate Division for assigning an incompetent attorney to prosecute his appeal. Court of claims denied motion holding that amendment was precluded by doctrine of judicial immunity.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Iseman, Cunningham, Riester & Hyde, LLPBy: Michael J. Cunningham, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to CPLR § 3025 and 22 NYCRR 206.7(b) permitting the amendment of his claim and for late claim relief pursuant to section 10 (6) of the Court of Claims Act is denied. The original claim filed on April 12, 1999 sets forth a cause of action for unjust conviction and imprisonment pursuant to section 8-b of the Court of Claims Act. The answer was filed on May 3, 1999, a note of issue was filed on June 27, 2000 and trial of the claim has been scheduled for March 7, 2001. By this motion claimant seeks to amend the claim to add a second cause of action alleging "negligence on the part of the State in furnishing assigned legal counsel for the criminal appeal which eventually resulted in vacatur of this wrongful conviction." In his supporting affirmation claimant's counsel alleges that "[t]he proposed cause of action arises from (1) the malpractice of assigned counsel and (2) negligence of the Appellate Division, Third Department in furnishing assigned counsel pursuant to ministerial duties imposed by County Law § 722."

In October 1993, claimant was convicted in Albany County Court of criminal possession of a controlled substance in the fifth degree and thereafter sentenced to a prison term of 3 ½ to 7 years. On December 9, 1993, the Albany County Public Defender's office filed a notice of appeal on claimant's behalf and claimant applied to the Appellate Division, Third Department, for the assignment of appellate counsel pursuant to County Law § 722. That Court requested that the Public Defender suggest an attorney and, on February 14, 1994, an attorney was assigned to represent claimant in connection with his appeal. The assigned attorney failed to perfect the appeal for a period of three years following the assignment, however, and on February 5, 1997 the Appellate Division replaced the attorney with another attorney, who perfected the appeal approximately two weeks thereafter. By decision rendered July 17, 1997, the Appellate Division reversed petitioner's conviction and dismissed the indictment against him (People v Swain, 241 AD2d 695). By that time, petitioner had satisfied his minimum period of imprisonment and had been released on parole supervision.

Claimant thereafter by motion dated June 12, 1998 sought leave in Supreme Court to file a late notice of claim against the County of Albany pursuant to General Municipal Law § 50-e(5). That motion was denied in a decision and order of the Honorable Joseph C. Teresi, J.S.C. dated October 5, 1998 (claimant's Exhibit H) on the grounds that the relief was time barred. The Appellate Division, Third Department, affirmed but on different grounds holding that claimant's proposed claim against the County of Albany was "patently meritless" since any duty owed by Albany County to monitor, supervise or replace counsel ended on February 14, 1994; the date the Appellate Division appointed the attorney recommended by Albany County to handle claimant's appeal. The Appellate Division also held that claimant's cause of action for negligent representation against the County of Albany could not have accrued before July 17, 1997 pursuant to the Court of Appeals determination in Carmel v Lunney, 70 NY2d 169 (see, Matter of Swain v County of Albany, 268 AD2d 747). A motion for leave to appeal the Appellate Division's decision and order in claimant's case was denied by the Court of Appeals on April 6, 2000.

In the interim, on April 12, 1999, claimant filed a claim in this court for unjust conviction and imprisonment which he now seeks to amend by adding a cause of action for negligence against the State arising out of the assigned attorney's alleged legal malpractice and the Appellate Division's alleged negligent appointment and supervision of appellate counsel.

CPLR 3025 (b) provides that leave to amend a pleading "shall be freely given upon such terms as may be just. . ." New York courts have held, however, that a motion seeking such leave should be denied where the claim sought to be added "is patently without merit" (General Motors Acceptance Corp. v Shickler, 96 AD2d 926). In Hauptman v New York City Health & Hospitals Corp., 162 AD2d 588, 589 the Appellate Division, Second Department stated that:
Although a motion to amend a pleading should be freely given absent a showing of prejudice or surprise to the opposing party (CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934; Hopper v Hise, 131 AD2d 814), an amendment which is devoid of merit, and whose insufficiency or lack of merit is 'clear and free from doubt' will not be permitted (Hayden v Josim Assocs, 148 AD2d 495, 496; Sharapata v Town of Islip, 82 AD2d 350, affd 56 NY2d 332; Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512).
Similarly, claimant's application for late claim relief pursuant to Court of Claims Act § 10 (6) requires a showing of merit. It is well established that the most important of the statutory factors to be considered by the Court upon such an application is whether the potential claim has merit (Savino v State of New York, 199 AD2d 254).

The imputation of liability against the State for the malpractice of an assigned attorney may only be accomplished through application of the doctrine of respondeat superior. "Where the doctrine of respondeat superior is invoked it must be shown that the person committing the act was an employee of the party sought to be charged, and that the act was committed within the scope of such employment" (Hacker v City of New York, 26 AD2d 400, 403).

The proposed amended claim does not allege that the assigned attorney was an employee, agent or officer of the State at the time of the alleged acts of malpractice. Absent such an allegation there can be no basis for imposing liability upon the State for torts arising from the attorney's conduct. In this regard, claimant cites neither statute nor case law to support his argument that the State should be liable for the malpractice of the assigned attorney. Claimant seeks such imputation solely upon the silence of the Appellate Division in its decision in Matter of Swain v County of Albany, (268 AD2d 747) with reference to the potential imputation of negligence to the County of Albany under an agency or master-servant theory. Claimant's argument in this regard is rejected. This Court refuses to consider the imputation of liability against the State absent at least an allegation that claimant was damaged as a result of the actions of a State employee, agent, or officer (Daniels v Empire-Orr, Inc., 151 AD2d 370; Chase Invs. V Kent, 256 AD2d 298).

Claimant also argues that the Appellate Division, in discharging its function under County Law § 722, was performing an administrative function and that the doctrine of judicial immunity is, therefore, not a barrier to the State's liability for the Court's alleged ministerial negligence. The defendant, on the other hand, argues that the appointment of appellate counsel was part of the judicial process and that the Court's actions are judicially immune to liability. Defendant also argues that while County Law § 722 creates a duty on the part of the Appellate Division to appoint counsel it does not create a further duty to supervise or monitor such attorney in the performance of his or her work. Such a duty, it is argued, would create a conflict of interest for the Court since it would be deciding a criminal appeal prepared by an attorney whose work was monitored or supervised by the very court sitting in judgment.

The Appellate Division's function in regard to the assignment of appellate counsel is prescribed in County Law § 722 as follows:
Upon an appeal in a criminal action, and on any appeal described in section eleven hundred twenty of the family court act or section four hundred seven of the surrogate's court procedure act, wherein the party is financially unable to obtain counsel, the appellate court shall assign counsel furnished in accordance with the plan, conforming to the requirements of this section, which is in operation in the county or in the city in which a county is wholly contained wherein the judgment of conviction, disposition or order of the trial court was entered; provided, however, that when such county or city has not placed in operation a plan conforming to that prescribed in subdivision three or four of this section and such appellate court is satisfied that a conflict of interest prevents the assignment of counsel pursuant to the plan in operation, or when such county or city has not placed in operation any plan conforming to that prescribed in this section, such appellate court may assign any attorney in such county or city and, in such event, such attorney shall receive compensation and reimbursement from such county or city which shall be at the same rate as is prescribed in section seven hundred twenty-two-b of this chapter.
There is no doubt that the Appellate Division, Third Department was the designated appellate court for criminal appeals from judgments of conviction arising, as did claimant's, in Albany County Court. Nor is there any doubt that appellate counsel was assigned under County Law § 722 upon recommendation of the Albany County Public Defender.

In order to defeat the preclusive effect of the doctrine of judicial immunity claimant must allege and demonstrate that the actions of the Appellate Division in this matter were performed in the clear absence of jurisdiction (Harley v State of New York, 186 AD2d 324). The doctrine was solidly established at common law and its goal was "not to benefit the Judge, but to protect the public on whose benefit the Judge acts; that benefit is to secure a Judge's ability to act independently without fear of personal consequences" (Alvarez v Snyder, 264 AD2d 27, 34 citing, Pierson v Ray, 386 US 547). Only two exceptions to the doctrine are recognized; when a judge does not act as a judge or when a judge, though acting under color of judicial authority, lacks any jurisdiction to support the action taken (see, Alvarez v Snyder, (supra); Mireles v Waco, 502 US 9). The doctrine applies not only to judges themselves but has also been extended to non-judicial personnel. In Weiner v State of New York, ____ AD2d ____, 710 NYS2d 325 the Appellate Division First Department held:
[J]udicial immunity "applies to all acts of auxiliary court personnel that are 'basic and integral parts of the judicial function,' unless those acts are done 'in the clear absence of all jurisdiction' " (see, Sindram v. Suda, 986 F.2d 1459, 1460 [D.C. Cir. 1993], citing Mullis v. United States Bankruptcy Court, District of Nevada, 828 F. 2d 1385, 1390 (9th Cir. 1987], appeal dismissed, cert. denied 486 U.S. 1040, 108 S. Ct. 2031, 100 L.Ed.2d 616; Foster v. Walsh, 864 F.2d 416, 417 [6th Cir. 1988]; Dellenbach v. Letsinger, 889 F.2d 755, 763 [7th Cir. 1989], cert. denied 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950; Rodriguez v. Weprin, 116 F.3d 62 [2d Cir. 1997]). As the Seventh Circuit Court of Appeals aptly noted, it is necessary to extend judicial immunity to non-judicial court personnel performing their prescribed functions, in order to avoid" [t]he danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts" (Scruggs v. Moellering, 7th Cir., 870 F.2d 376, 377, cert. denied 493 U.S. 956, 110 S.Ct. 371, 107 L.Ed.2d 357).
The actions of a court clerk and of other non-specified court personnel were deemed to be "quasi-judicial in nature and thus cloaked with judicial immunity" in Welch v State of New York, 203 AD2d 80.

Claimant on this motion has utterly failed to allege facts sufficient to demonstrate that the actions of the Appellate Division giving rise to this proposed amended negligence claim were performed in the absence of jurisdiction so as to take such actions outside the cloak of judicial immunity (Harley v Perkinson, 187 AD2d 765). Dismissal of a claim against named members of the judiciary on the basis of absolute judicial immunity was affirmed by the Appellate Division where the facts alleged were insufficient to demonstrate that the acts complained of were performed in the absence of jurisdiction (Harley v State of New York, supra).

Claimant's argument that the acts complained of were ministerial or administrative in nature is unavailing. Such arguments were raised and rejected in Moore v Caponera (99 Misc 2d 953) and in Gordon v County of Albany (115 Misc 2d 302) in which the Courts determined that judicial immunity applied regardless of the nature of the acts complained of unless performed in the clear absence of jurisdiction.

Claimant has failed to demonstrate, that the action undertaken by the Appellate Division pursuant to County Law § 722 in appointing appellate counsel, and any subsequent case management performed by the court staff on the court's behalf, were performed other than as part of the court's judicial function. Nor has claimant alleged an absence of jurisdiction. As a result, the claimant has failed to demonstrate the potential merit of the negligence cause of action contained in the proposed amended claim. Accordingly, the claimant's motion to amend the claim is denied.

October 18, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 17, 2000;
  2. Affirmation of Michael J. Cunningham dated July 17, 2000;
  3. Affidavit of Edward Swain dated July 16, 2000 with exhibits;
  4. Affirmation in opposition of Paul F. Cagino dated August 8, 2000.