New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2002-028-016, Claim No. 102445, Motion No. M-64498


Claim dismissed pursuant to 3211(a)(7). Claimant also made admissions that would have entitled defendant to summary judgment.

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:
HOGAN & HOGANby: John M. Hogan, III
Defendant's attorney:
BY: Kevan J. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for dismissal pursuant to CPLR 3211(a)(7) or for summary judgment pursuant to CPLR 3212:

1) Notice of Motion and Affirmation of Assistant Attorney General Kevan J. Acton (Acton Affirmation) filed January 3, 2002 and Defendant's Memorandum of Law;

2) Affirmation in Opposition of John M. Hogan, III, Esq. (Hogan Affirmation ) filed January 14, 2002;

3) Affidavit in Opposition of William Burns, (Burns Affidavit) filed January 14, 2002;

4) Reply Affirmation of Assistant Attorney General Kevan J. Acton (Acton Reply)

filed January 16, 2002.

Filed Papers: Claim filed May 10, 2000 and Verified Answer, filed June 5, 2000.

The underlying Claim was filed by claimant while proceeding pro se. In it, Claimant alleges that beginning on January 5, 2000 and continuing through February 11, 2000 Claimant was "unlawfully imprisoned as a result of the abuse of process... including intentional harassment" and "was imprisoned without a hearing" (Claim ¶ 2). The unlawful imprisonment, abuse of process and negligence was committed by agents and employees of the State of New York, including the Attorney General's office (Claim, ¶ 5).

Defendant's moving papers apprized the Court that the New York State Department of Health (DOH) commenced a civil action against the Claimant on September 4, 1997 in Supreme Court, Saratoga County (Acton Affirmation, ¶¶ 5, 6)[1] . In the context of that proceeding, DOH was granted a preliminary injunction, and on or about January 30, 1998 DOH moved for a contempt citation. The parties placed a stipulation upon the record and the contempt application was held in abeyance as the Court opted to supervise compliance with the injunction and subsequent stipulation. Following a series of extensions for Claimant to comply with the Court's orders, DOH again sought a contempt finding on its earlier filed contempt motion. On April 12, 1999, a hearing was held at which Claimant, although present, did not testify. The Supreme Court entered a conditional order of contempt and provided a new deadline to Claimant. That deadline also passed without compliance, resulting in the Claimant appearing before the Court three separate times between June 2, 1999 and July 30, 1999. On September 15, 1999 the Supreme Court conducted another hearing on the contempt motion and again provided Claimant with a timetable for compliance, which included three "milestones." On October 8, 1999, the Attorney General, on behalf of DOH, requested the Court sign the Order of Contempt, advising that the second milestone was not met. On October 18, 1999 the Supreme Court signed the order holding claimant in contempt of Court and following further proceedings, including Claimant's Order to Show Cause in Supreme Court, Claimant was incarcerated for the contempt.

Defendant's first argument, that the Claim is untimely and therefore the Court lacks jurisdiction is without merit. Initially, the Court finds that the State adequately pleaded the timeliness defense with sufficient particularity to meet the requirement of Court of

Claims Act § 11(c) (see, Sinacore v State of New York, 176 Misc 2d 1, 9). A claim for false imprisonment accrues when the confinement ceases (see, Herring v The State of New York, Claim No. 96484, Motion No. M-61552 , UID #2000-007-037, [Bell, J.] [noting plethora of precedent pointing to the release date as the mark to be used when calculating whether the claim was timely])[2]charge. Access may be gained through the Court of Claims website at . Here, Claimant was released from jail on February 11, 2000, and that became the accrual date of his Claim. Claimant then had ninety days (90) in which to serve and file a Claim (Court of Claims Act § 10[3]). Claimant then filed and served his Claim on May 10, 2000, the eighty-ninth day following accrual. As such, the Claim was timely filed.

The Court next addresses the State's motion to dismiss the claim pursuant to CPLR 3211(a)(7). Accepting the factual averments of the claim as true and according Claimant the benefit of all favorable inferences which may be drawn from the pleading, the test on a motion to dismiss pursuant to CPLR 3211(a)(7) is whether Claimant can succeed upon any reasonable view of the facts stated (Campaign for Fiscal Equity v State of New York, 86 NY2d 307). Even assuming the truth of the allegations in the claim, no cause of action is stated. The only basis offered in the claim for imposing liability is that Claimant was imprisoned without a hearing. In the Court's view, the allegations fail to give even a hint as to any factual detail explaining how Claimant came to be imprisoned. The instant claim is not an inarticulately pleaded cause of action from which the Court can glean a viable cause of action. Rather, it is but a few conclusory allegations which are insufficient to state a cause of action (see, Lotz v Lotz, 135 AD2d 1007). Inasmuch as Claimant's opposition papers indicate the imprisonment was based upon a finding of contempt, Claimant has failed to allege any basis for abrogating judicial immunity (see, Murray v Brancato, 290 NY 52; Lombardoni v Boccaccio, 121 AD2d 828; Fields v Soloff, 920 F2d 1114; Harley v State of New York, 186 AD2d 324; [it is well settled 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]). To the extent the Court can read the Claim as alleging wrongful acts by the Office of the Attorney General by seeking a contempt order in the Supreme Court proceeding, such action by the Attorney General is absolutely immune from civil liability in the circumstances (Bowles v State of New York, 208 AD2d 440; see also, Arteaga v State of New York, 72 NY2d 212). Accordingly, Defendant is entitled to dismissal of the claim.

Assuming arguendo, that the claim stated a viable cause of action, Defendant would nevertheless be entitled to summary judgment dismissing the claim. Summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361). In order to grant summary judgment, a Court must find that there are no material triable issues of fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). Only the existence of a material issue of fact, however, and not one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320). While Claimant alleges he was imprisoned without a hearing, counsel for the parties agreed a hearing on the contempt motion was held on September 15, 1999 (Acton Affirmation, ¶¶ 12 and 16; Hogan Affirmation, ¶¶ 12 and 13 ).[3] In the face of this admission, to the extent Claimant could argue that the supreme court judge's immunity was lost when he acted in the clear absence of jurisdiction (Stump v Sparkman, 435 US 349, 356-357; La Pier v Deyo, 100 AD2d 710) by imprisoning him for contempt without a hearing, such argument must fail (see, Power Equipment Co., a Div. of Jilnance Corp. v Palmyra Elec. Co., 90 AD2d 959 [papers submitted contained averments which constitute admissions of the material allegations warranting summary judgment]). Defendant has established that absolute immunity attaches to the judge's actions and bars the instant claim.

For the foregoing reasons, Defendant's motion is GRANTED and Claim No. 102445 shall be and hereby is dismissed in its entirety.

March 25, 2002
Albany, New York

Judge of the Court of Claims

[1] Defendant's moving papers did not include any of the referenced orders from the Supreme Court proceeding or other documentary evidence. Claimant's opposition papers reiterated the same set of facts, nearly verbatim, and added the allegation that Claimant was not afforded a hearing.

[2] Recent decisions of the Court of Claims are available in a searchable database on the Internet, free of

[3] Defendant asserts two hearings were held while Claimant acknowledges only one. The Court has found no authority for the proposition apparently advanced by Claimant that once a hearing is held by the Court on the contempt application, that further hearings are required (see generally, Siegel NY Prac, 3rd Ed § 483, et. seq).