New York State Court of Claims

New York State Court of Claims

MILLETT v. THE STATE OF NEW YORK, #2002-015-294, Claim No. 106234, Motion No. M-65493


Claim seeking money damages for defendants' alleged protection of reputed child molestater and case fixing dismissed for lack of jurisdiction and failure to state cause of action.

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:
William Millett, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 2, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction and for failure to state a cause of action is granted. The instant claim alleges that it accrued on May 26, 2002 in Warren, Washington, Saratoga and Albany Counties and seeks $10 million dollars in damages. It further alleges in paragraph "2":
State Police, Dept Of Social Services, Warren County Family Court, State Bar Association have coluded to protect child molester and deny claimants rights to due process. Case fixing. [sic]
The defendant has moved to dismiss on the grounds that the claim lacks sufficient information to enable the State to promptly investigate the allegations and determine its potential liability. It is argued that the claim, therefore, fails to meet the statutory requirements set forth in Court of Claims Act § 11 (b). In addition, the defendant asserts that the Court of Claims has no jurisdiction to hear cases against a State Bar Association or against any county Department of Social Services.

In response to the motion the claimant submitted three type written pages the first of which contains the caption of the action including the claim number, place of execution and the date, a service reference to the Attorney General and the words "with enclosures, seal of New York shows jurisdiction and cause." This document was accompanied by a letter dated July 20, 2002 to the Attorney General purporting to offer "proof of molestation and lack of disclosure by the agencies you [the Attorney General] have jurisdiction over." This letter indicates an original and two copies of otherwise unspecified documents were served upon the Clerk of the Court. The third page contains a caption and a list of eight numbered items followed by a request that further proceedings be allowed and that this Court determine the authenticity of the last paragraph of an attached memorandum and order of the Supreme Court, Appellate Division, Third Department dated and entered March 2, 2000. None of the three documents submitted by claimant on the motion is in affidavit form nor is claimant's signature on page three sworn to before a notary public. Claimant's submission, lacking in both form and substance, is deemed a nullity and the motion will be treated as unopposed (see, Doumanis v Conzo, 265 AD2d 296).

On a pre-answer motion to dismiss a claim for failure to state a cause of action the Court is required to afford the pleading a liberal construction; accept claimant's allegations as true and accord him or her the benefit of every possible favorable inference (Parker v State of New York, 242 AD2d 785, 786). With regard to the specificity required of a claim the Appellate Division, Second Department in Wharton v City University of New York, 287 AD2d 559, 560 recently held:
Court of Claims Act § 11 (b) does not require 'absolute exactness'; it requires a statement made with 'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required' (Grumet v State of New York, 256 AD2d 441, 442 [internal quotation marks omitted]; Heisler v State of New York, 78 AD2d 767; see, Cobin v State of New York, 234 AD2d 498). However, 'conclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet its requirements' (Grumet v State of New York, supra, at 442; Heisler v State of New York, supra, at 767-768).
Viewed in this manner it is immediately apparent that the instant claim fails to state any viable cause of action against the State of New York. It fails to allege how the named claimant has been injured or in what manner the acts or omissions of State officers, employees or agents caused or contributed to his injury. To the extent that claimant may have intended to allege a civil conspiracy, New York does not recognize an independent tort of civil conspiracy. Such a cause of action is available only if there is evidence of an actionable underlying tort (see, Baker v Vanderbilt Co., 260 AD2d 750; Le Sannom Bldg. Corp. v Dudek, 177 AD2d 390).

Assuming arguendo that claimant was seeking to allege a criminal conspiracy he cannot seek legal redress in this Court nor may he seek to recover monetary compensation for criminal activity in any Court (see, Criminal Procedure Law § 20.40; Penal Law § 20.00; People v Ribowsky, 77 NY2d 284).

Finally, New York does not recognize a tort of "case fixing." The doctrine of prosecutorial immunity and the legal principle that vicarious liability cannot be imposed upon the State as employer under the doctrine of respondeat superior in such circumstances preclude claimant's recovery against the State (Ryan v State of New York, 56 NY2d 561). The instant claim, therefore, fails to state a cause of action.

It is further found that the claim does not contain sufficient specificity to enable the defendant to investigate the occurrence[s] (Grande v State of New York, 160 Misc 2d 383, 386). The claim fails to set forth the alleged acts or omissions on which claimant seeks to have the Court impose liability. It thus fails to meet the standard for a claim set by the Appellate Division, Second Department in Wharton v City University of New York, supra at 560.

Claimant's failure to comply with this very basic requirement of Court of Claims Act § 11 (b) renders the claim jurisdictionally defective and subject to dismissal (Grande v State of New York, supra; Harper v State of New York, 34 AD2d 865).

The defendant's motion is granted and the claim is hereby dismissed.

October 2, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 15, 2002;
  2. Affirmation of Kathleen M. Resnick dated July 15, 2002 with exhibit.

Submitted but not considered:

  1. Opposition to dismiss dated July 20, 2002.