New York State Court of Claims

New York State Court of Claims

LEVINE v. THE STATE OF NEW YORK, #2004-033-050, Claim No. 106803, Motion No. M-67644


Synopsis



Case Information

UID:
2004-033-050
Claimant(s):
SAMUEL M. LEVINE
Claimant short name:
LEVINE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106803
Motion number(s):
M-67644
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Samuel M. Levine, Pro Se
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Samuel Levine (hereinafter "claimant") for damages as a result of his allegedly being falsely arrested, imprisoned, assaulted and found in contempt. The causes of action arose at the Nassau County Family Court. Claimant moves this Court to recuse itself from hearing this action and to have another Court of Claims judge appointed to this matter. Claimant also asks this Court to stay its proceedings pending the outcome of a concomitant action in the United States District Court.[1]

The underlying claim arose on July 24 and 25, 2002. At that time, claimant, an attorney, was representing a client in the Nassau County Family Court. Briefly, claimant alleges that he and his client were forcibly removed from Judge Richard Lawrence's courtroom, that claimant was wrongfully arrested, assaulted by court officers and found guilty of contempt by Judge Lawrence.

Claimant asks this Court to recuse itself on two grounds: first, that Judge Lawrence and I were active members of the Republican Party; and second, that Judge Lawrence and I each worked in the New York State Senate during the same period of time.

The Rules of the Chief Administrator delineate particular circumstances in which a judge shall recuse himself. Those circumstances are contained in §100.3(E) and read as follows:
(E) Disqualification.


(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:


(a) (i) the judge has a personal bias or prejudice concerning a party; or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;


(b) the judge knows that (i) the judge served as a lawyer in the matter in controversy; or (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter; or (iii) the judge has been a material witness concerning it;


(c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding;


(d) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding;

(ii) is an officer, director or trustee of a party;

(iii) has an interest that could be substantially affected by the proceeding;

(iv) is likely to be a material witness in the proceeding;


(e) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.

(f) Notwithstanding the provisions of subparagraphs (c) and (d) of this section, if a judge would be disqualified because of the appearance or discovery, after the matter was assigned to the judge, that the judge individually or as a fiduciary, the judge's spouse, or a minor child residing in his or her household has an economic interest in a party to the proceeding, disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.

The instant situation does not fall into any of the specific situations listed in the Rules of the Chief Administrator. The request for recusal then falls within the discretion of this Court. Claimant indicates in his affirmation that Judge Lawrence and I have known each other for several years due to the fact that we each worked in the NYS Senate. During a conference, claimant indicated that Judge Lawrence was counsel to a state senator. Prior to my being appointed to this Court in January 2003, I was a state senator for the second senate district for twenty-four years. However, I have no recollection of Judge Lawrence, who he worked for, when he worked in the Senate, or if we even ever met. After all, the New York State Senate employs over 1,400 people.

In addition, claimant indicates that he and I were political adversaries during his campaigns for Supreme Court in 1992, 1997, and 1998, and during his campaigns for District Court in 1993, 1994, 1995 and 1996. This is not accurate. I have never run for judicial office, and with respect to claimant's campaigns for District Court, I have never run in Nassau County for any office. The position I hold as a Court of Claims Judge is as an appointee of the governor of the State of New York (Court of Claims Act §2). Further, while I am a registered Republican, I have never held a position of any kind - - including committeeman - - in the Republican Party. Claimant's request for recusal is denied.

The other relief sought by claimant is for this Court to stay its proceedings, pending the outcome of claimant's action in federal court. Claimant avers that he intends to move the Federal Court to consolidate the New York State Court of Claims action with the federal action, a procedure with which I am unfamiliar. Pursuant to Article VI, §9 of the New York State constitution, the Court of Claims was created and granted exclusive jurisdiction of claims against the State of New York for money damages.

The situation presented in the instant matter is not unique. Due to the limited jurisdiction of the Court of Claims and the inability to sue the State of New York in any other forum, claimants are often faced with the same predicament claimant now faces. Short of a constitutional amendment, there is no solution to claimant's problem other than proceeding with both actions in separate courts. Claimant chose to bring this action as well as the federal action. He presents no basis to delay this case any further. Claimant's motion to stay discovery in the instant proceeding is, therefore, denied. In sum, claimant's motion for the Court to recuse itself and to stay the proceedings pending the outcome of the federal court action is denied.


March 29, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on claimant's motion to recuse and stay proceedings: Notice of Motion dated November 5, 2003 and filed November 12, 2003; Affirmation of Samuel M. Levine, Esq., in Support of Motion with Exhibits 1-8 dated November 5, 2003 and filed November 12, 2003; Reply Affirmation of John M. Shields, Esq. dated November 13, 2003 and filed November 20, 2003; Reply Affirmation of Samuel M. Levine, Esq., in Support of Claimant's Motion, dated November 24, 2003 and filed December 1, 2003.