New York State Court of Claims

New York State Court of Claims

VASILE v. THE STATE OF NEW YORK, #2000-019-535, Claim No. 99806, Motion No. M-61844


Synopsis


Claimant's "Motion for Default & To Punish" is denied and Claim dismissed, sua sponte, for lack of subject matter jurisdiction.

Case Information

UID:
2000-019-535
Claimant(s):
CARMINE VASILE
Claimant short name:
VASILE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99806
Motion number(s):
M-61844
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CARMINE VASILE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Denis J. McElligott, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 22, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion, this pro se Claimant's fifth motion, is entitled as a "Notice Of Motion For Default & To Punish". The State of New York (hereinafter "State") opposes the motion and requests additional time to comply with discovery demands.


The Court has considered the following papers in connection with this motion:
  1. DECISION & ORDER, Lebous, J., Claim No. 99064, Motion No. M-58433, filed December 16, 1998.
  1. "NOTICE OF CLAIM", filed February 16, 1999.
  2. "NOTICE OF CLAIM", filed March 10, 1999.
  3. "VERIFIED ANSWER", filed April 1, 1999.
  4. "VERIFIED COMPLAINT", filed January 3, 2000.
  5. ORDER, Lebous, J., Motion No. M-59898, filed September 3, 1999.
  6. ORDER, Lebous, J., Motion No. M-60379, filed November 17, 1999.
  7. DECISION & ORDER, Lebous, J., Motion No. M-60886, filed February 22, 2000.
  8. DECISION AND ORDER, Lebous J. Motion No. M-61186, filed March 29, 2000.
  9. "NOTICE OF MOTION FOR DEFAULT & TO PUNISH", Motion No. M-61844, dated June 9, 2000 and filed June 12, 2000.
  10. Affidavit of Carmine Vasile, in support of motion, sworn to June 9, 2000, with attachments.
  11. Faxed letter from Carmine Vasile to Court, dated and received August 9, 2000.
  12. Affirmation of Denis J. McElligott, AAG, in opposition to motion, dated August 18, 2000, filed August 21, 2000, with attached exhibits.
  13. "COMPLAINT OF OFFICIAL MISCONDUCT BEFORE THIS COURT", from Carmine Vasile to Court, sworn to August 22, 2000 and received by the Court on August 25, 2000.

Claimant seeks an Order: (1) "[h]olding the State in contempt for willful violation of this Court's Preliminary Conference Stipulation and Order dated 18 June 1999"; and (2) "[g]ranting a default judgment in favor of Claimant upon the State's failure to answer said Verified Complaint that was duly served on December 31, 1999". (Notice of Motion For Default & To Punish).


First, a procedural matter needs to be addressed. The State avers that on August 8, 2000 (one day before the scheduled return date) the parties had reached an agreement to adjourn the motion for one month during which time the State would respond to Claimant's discovery demands and, in fact, so advised this Court by way of a telephone message on or about August 8, 2000. On August 9, 2000, the Court received a fax from Claimant objecting to the State's request for an adjournment. (Court Exhibit 1). In view of the parties tentative "agreement" and the ensuing confusion, the Court has accepted the State's opposing affidavit and Claimant's "Complaint of Official Misconduct Before this Court", even though both were submitted after the return date and will address the merits of the motion. (CPLR 2214 [c]).


There are two separate facets to Claimant's motion, namely his request to hold the State in contempt for the failure to comply with discovery and his bid for a default judgment based on the State's alleged failure to answer his "Verified Complaint". Some background about Claimant's pleadings is in order before turning to Claimant's request for a default judgment. Claimant filed a "Notice of Claim" on February 16, 1999 which was accepted as a Claim.[1] The State filed a Verified Answer thereto on April 1, 1999. Next, on March 10, 1999, Claimant filed another "Notice of Claim" in order to correct a typographical error and which the Office of the Clerk considered as an "Amended Claim". Then, almost a year later Claimant filed a "Verified Complaint" on January 3, 2000 in the Office of the Clerk which is the focus of this motion. The proof of service submitted therewith indicates receipt thereof by the Attorney General's office on January 3, 2000. It is the State's failure to formally answer this "Verified Complaint" which Claimant asserts entitles him to a default judgment.[2] For reasons which will become apparent, it is important to note that this instant Claim and the five subsequent motions thereunder came on the heels of this Court's prior Decision & Order dismissing a similar claim arising from the same facts asserted herein. (Vasile v State of New York, Ct Cl., December 16, 1998, Lebous, J., Claim No. 99064, Motion No. M-58433).


In response to Claimant's request for a default judgment, the State indicates that upon receipt it viewed this "Verified Complaint" as untimely, superfluous, and mistakenly filed. The Court credits the State's representation that it believed Claimant mistakenly served and filed this Verified Complaint, after already having served and filed a Claim, because he "[w]as confusing the terminology and procedures of the General Municipal Law governing actions against municipalities with the Court of Claims rules governing claims against the State." (Affirmation of Denis J. McElligott, AAG, p 2). Clearly, this "Verified Complaint" was served and filed without leave of court after the time period within which an amendment could have been made as of right. (22 NYCRR 206.7; CPLR 3025). However, even though the State's decision to ignore this "Verified Complaint" may have been understandable in light of the above factors, a defendant waives any timeliness objection unless it rejects the untimely pleading. (Nassau County v Incorporated Vil. of Rosyln, 182 AD2d 678, 679, lv denied 80 NY2d 972). Nevertheless, based on the foregoing, the Court finds that any default in answering by the State was excusable within the context of this ongoing litigation. (Roy v State of New York, Ct Cl., June 13, 2000, Midey, J., Claim No. 101202).

In any event, it is also well-settled that a litigant is not automatically entitled to a default when, as here, the claim does not establish a prima facie case. (Matter of Dyno v Rose, 260 AD2d 694, 698, appeal dismissed 93 NY2d 998, lv denied 94 NY2d 753; Luna v Luna, 263 AD2d 470). This so-called "Verified Complaint" is merely a lengthy narrative containing allegations and conspiracy theories which have previously been rejected by this Court. (Vasile v State of New York, Ct Cl., December 16, 1998, Lebous, J., Claim No. 99064, Motion No. M-58433; Vasile v State of New York, Ct Cl., September 3, 1999, Lebous, J., Claim No. 99806, Motion No. M-59898; Vasile v State of New York, Ct Cl., November 17, 1999, Lebous, J., Claim No. 99806, Motion No. M-60379; Vasile v State of New York, Ct Cl., February 22, 2000, Lebous, J., Claim No. 99806, Motion No. M-60886; Vasile v State of New York, Ct Cl., March 29, 2000, Lebous, J., Claim No. 99806, Motion No. M-61186). Moreover, in this Court's view, Claimant's motion for a default judgment has brought this new "Verified Complaint" before the Court for review. Under the inherent powers doctrine, this Court is permitted to direct a sua sponte dismissal when facts are uncovered establishing a lack of subject matter jurisdiction. (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718; Concourse Nursing Home v State of New York, Ct Cl., March 21, 2000, Collins, J., Claim No. 101181, Motion No. M-60960).[3] Accordingly, for the reasons stated below, after a detailed review of this "Verified Complaint" which consists of 22 pages containing over 170 paragraphs, fifteen separate causes of action, as well as requests for a declaratory judgment and appointment of counsel, this Court finds that there is no subject matter jurisdiction over any of the matters alleged therein, thereby requiring this Claim to be dismissed.


The Court will attempt to summarize, without verbatim recitation of all 170 paragraphs, the numerous allegations contained in Claimant's Verified Complaint:[4]
1st cause of action
:

•constitutional torts due to violations of State Constitution Art. 1, § § 6, 11, & 12, by Justice Underwood for ordering Claimant's "wrongful arrest and incarceration" on January 5, 1999.

2nd cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6, 11, & 12, by Justice Underwood for ordering Claimant's arrest in "illegal civil contempt proceedings" on January 5, 1999.


3rd cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 by Justice Underwood for granting Order to Show Cause on October 20, 1999, as well as Justice Austin, Office of Court Administration, Attorney General and Grievance Committee.


4th cause of action

•constitutional tort due to violations of State Constitution Art. 1, § § 6 & 11 by Justice Austin.


5th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 by Justice Underwood, Oshrin and Austin for failing to dismiss duplicate supreme court case; and for negligent training/supervision of officers, law enforcement officials, court clerks and employees, county clerks and employees, investigators and administrative judges.


6th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 by Justice Underwood for enjoining Claimant from commencing further actions.


7th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § 9 by Justice Underwood for enjoining Claimant from contacting his step-daughter without jurisdiction.
8th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6, 9 & 11 by Justice Underwood and Suffolk County Sheriff for enforcing invalid judgments/orders.


9th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 and 11 by Justice Underwood for denying Claimant a traverse hearing but granting another litigant a traverse hearing in a different case.


10th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 by Justice Underwood for denying Claimant a traverse hearing "knowing full well that he was a victim of a multi-decade civil rights conspiracy" and misdeeds by attorney general. (Verified Complaint, ¶ 102).


11th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6, 9 & 11 because the attorney general abused its prosecutorial discretion by failing to stop crimes.


12th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6, 9 & 11 for negligent training and/or supervision of assistant attorney generals and investigators.


13th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 by assistant attorney generals Nicolino and Sampson for concealing from federal tribunals that former attorney general had prosecuted process servers back in the mid-1980s.


14th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 for negligent training of attorney generals and investigators for violation of the Code of Professional Responsibility, DR 7-102(B)(2).


15th cause of action

•constitutional torts due to violations of State Constitution Art. 1, § § 6 & 11 because "[a]ssistant attorney general Sampson permitted Claimant to be wrongly sanctioned $2500 by the U.S. Court of Appeals when she had a duty to speak." (Verified Complaint, ¶ 170).


Declaratory Judgment

•requests "[t]his Court to order restitution and declare that ...'Actions of State or local officials which violate these constitutional guarantees are void'....." (Verified Complaint, ¶ XVI, p 22).


Request for Appointment of Counsel

•"Claimant is in want of counsel and respectfully requests this Court to appoint one based upon the failure of the State to controvert any allegation in three of his Notices of Motion." (Verified Complaint, p 22).

This Court has no jurisdiction to intervene in ongoing supreme court matters or to review judicial rulings made in connection therewith. (Vasile v State of New York, Ct Cl., December 16, 1998, Lebous, J., Claim No. 99064, Motion No. M-58433; Vasile v State of New York, Ct Cl., February 22, 2000, Lebous, J., Claim No. 99806, Motion No. M-60886; see also, Lombardoni v Boccaccio, 121 AD2d 828; CCA 9). Moreover, the causes of actions against supreme court justices should be dismissed based upon the doctrine of absolute judicial immunity. (Harley v State of New York, 186 AD2d 324, appeal dismissed 81 NY2d 781). Accordingly, this Court has no jurisdiction over those portions of causes of action 1 through 10 disputing decisions and alleging misdeeds by various supreme court justices.


This Court does not have jurisdiction to compel the attorney general to prosecute any given matter or to punish the attorney general's office for the failure to pursue any given case; to prevent similar future crimes; or for failing to meet Claimant's expectations.[5] (Gerson v New York State Attorney-General, 139 AD2d 617, lv denied 73 NY2d 701). Accordingly, this Court has no jurisdiction over those portions of causes of action 3 and 11 through 15.


This Court has no jurisdiction to hear matters pertaining to the Suffolk County Sheriff's Department, Suffolk County, and/or any of its employees. (CCA 9). As such, this Court has no jurisdiction over that portion of the 8th cause of action relating to the acts and/or omissions of the Suffolk County Sheriff.


Nor does this Court have jurisdiction over those causes of action incorporating various misdeeds by certain agencies such as the Office of Court Administration, Grievance Committee and/or unnamed court and law enforcement personnel where, as here, monetary relief is incidental. (CCA 9; see also, Matter of Rye Psychiatric Hosp. Center v State of New York, 177 AD2d 834, lv denied 80 NY2d 751). As such, this Court has no jurisdiction over those portions of the 3rd, 5th, 12th, & 14th causes of actions incorporating such allegations.


Additionally, some of these causes of action seek punitive damages. Punitive damages are not allowed against the State. (Sharapata v Town of Islip, 82 AD2d 350, affd 56 NY2d 332).


The Court will next address the alleged violations of the State Constitution. It is well-settled that when an alternate remedy is available courts should refuse to imply a constitutional remedy. (Remley v State of New York, 174 Misc 2d 523). In each of these causes of action, Claimant had the right to appeal supreme court decisions with which he disagreed or to follow procedures in place to register complaints against various attorneys and judges with the appropriate agencies. The Court of Claims has no jurisdiction to review matters best left to established agencies in the first instance or, for that matter, to review discretionary decisions of State agencies as that jurisdiction is vested in the supreme court via an Article 78 proceeding. (Matter of Rye Psychiatric Hosp. Center v State of New York, supra, 177 AD2d 834, lv denied 80 NY2d 751; Vasile v State of New York, Ct Cl., September 3, 1999, Lebous, J., Claim No. 99806, Motion No. M-59898). In other words, there were adequate remedies available to Claimant to pursue each of these matters and, as such, this Court will not create constitutional remedies where none are warranted.


With respect to Claimant's request for a declaratory judgment, this Court does not have jurisdiction to entertain an application for a declaratory judgment of the type sought here. (Vasile v State of New York, Ct Cl., March 29, 2000, Lebous, J., Claim No. 99806, Motion No. M-61186; see also CCA 9; Wikarski v State of New York, 91 AD2d 1174). With respect to Claimant's demand for an appointment of counsel, Claimant made the identical request in a prior and separate motion which was denied by this Court. (Vasile v State of New York, Ct Cl., September 3, 1999, Lebous, J., Claim No. 99806, Motion No. M-59898).


In addition to the aforementioned grounds, dismissal of this claim is justified in light of this Court's prior Decision & Order dismissing Claim No. 99064. The earlier claim was dismissed due to, inter alia, lack of subject matter jurisdiction relative to judicial acts of a justice of the State supreme court and discretionary acts of assistant attorney generals. Here, Claimant's allegations are merely another attempt to pursue the very same matters over which this Court previously indicated it does not have subject matter jurisdiction, thereby warranting sua sponte dismissal. (Wehringer v Brannigan, 232 AD2d 206, lv dismissed 89 NY2d 980, reconsideration denied 89 NY2d 1087).


Finally, the Court has reviewed Claimant's "Complaint of Official Misconduct Before This Court" alleging various and sundry misdeeds by Denis J. McElligott, Assistant Attorney General and finds his assertions to be without merit. In this Court's view, any misunderstanding that developed between Claimant and the assistant attorney general were unfortunate but do not rise (or fall) to the levels suggested by Claimant, rather they are merely evidence of the risk of direct communication between an attorney and a pro se litigant. The Court need not address Claimant's remaining arguments regarding discovery issues.


Accordingly, for the reasons stated above, Claimant's motion for a default judgment, Motion No. M-61844, is DENIED and Claim No. 99806 is DISMISSED in its entirety.


September 22, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]
Technically, there is no document called a "Notice of Claim" authorized by the Court of Claims Act, rather a pleading is either a "notice of intention to file a claim" or a "claim".
[2]
This "Verified Complaint" was filed while Claimant's third motion was pending. (Vasile v State of New York, Ct Cl., February 22, 2000, Lebous, J., Claim No. 99806, Motion No. M-60886).
[3]
Claimant's allegations are not new and this is Claimant's second claim and 6th motion overall addressing these same allegations. Moreover, Claimant's previous and nearly identical claim (Claim No. 99064) was dismissed upon a motion to dismiss by the State. Over the course of these two claims and 6 motions, there has not been one document which has, or for that matter could, change the nature of this Court's limited jurisdiction.
[4]
This summary is in no way comprehensive of each and every allegation, but rather is an attempt to relate the essence of Claimant's key factual assertions and legal theories underlying his claim. Also, each cause of action demands different forms of relief including compensatory damages, attorney fees, costs, punitive damages, and/or trebled damages per Judiciary Law § 487.
[5]
Vasile v State of New York, Ct Cl., September 3, 1999, Lebous, J., Claim No. 99806, Motion No. M-59898; Vasile v State of New York, Ct Cl., March 29, 2000, Lebous, J., Claim No. 99806, Motion No. M-61186; Vasile v State of New York, Ct Cl., December 16, 1998, Lebous, J., Claim No. 99064, Motion No. M-58433.