New York State Court of Claims

New York State Court of Claims

MONTESANO v. THE STATE OF NEW YORK, #2003-028-536, Claim No. 107034, Motion Nos. M-66282, CM-66315


Synopsis


Case Information

UID:
2003-028-536
Claimant(s):
LOUIS MONTESANO
Claimant short name:
MONTESANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107034
Motion number(s):
M-66282, CM-66315
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
LOUIS MONTESANO, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 9, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers have been read and considered by the Court on the Motion of the defendant, State of New York, for an Order pursuant to Rule 3211 of the Civil Practice Law and Rules, dismissing the instant claim:

(1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Grace A.Brannigan (Brannigan Affirmation) with annexed Exhibit, filed January 14, 2003;

(2) Affidavit in Opposition of Louis Montesano, pro se (Montesano Affidavit), filed January 23, 2003;

(3) Notice of Cross-Motion and Supporting Affidavit of Claimant Louis Montesano (Montesano Affidavit in Support), filed January 23, 2003.[1]
On the Motion, whether the claim should be dismissed because it fails to comply with §11 of the Court of Claims Act, the answer is in the affirmative. A review of the claim reveals that it is replete with generalities and legal conclusions, but is bereft of any statement of facts which gives rise to those conclusions (see Heisler v State of New York, 78 AD2d 767; Grande v State of New York, 160 Misc 2d 383). There is, however, another reason for dismissing the instant claim, namely, that the actions of the judge in question are clothed with absolute judicial immunity.
Although the State of New York has waived its immunity, it is still not liable for the misconduct of judges on the theory of respondeat superior (Harley v State of New York, 186
AD 2d 324). This is true even if the acts performed are in excess of the jurisdiction. It is only where the acts are in excess of the jurisdiction and there is a clear absence of any jurisdiction that immunity will not attach. Here there is no allegation in either the claim or the opposing papers that the judge exceeded the jurisdiction or that there was a clear absence of jurisdiction.
Claimant's arguments relying on Murph v State of New York, is misapplied. The fact that a judge is not a judge of a court of superior jurisdiction generally does not remove his cloak of immunity, rather, as Judge Weisberg stated "...liability may ensue only where a judge acts in ‘the clear absence of all jurisdiction'...." (Murph v State of New York, 98 Misc 2d 324, 325-326). Again, as noted previously, no such allegation has been made. Therefore, the Court finds that no cause of action has been stated and the State's Motion is hereby granted. Accordingly, the claim is dismissed.
By virtue of the foregoing, the Claimant's cross-motion is denied as moot.
May 9, 2003
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims

[1] The Cross-Motion seeks to correct the caption to reflect the fact that the State of New York is the correct and only defendant. The application is unopposed and is granted.