New York State Court of Claims

New York State Court of Claims

KELLMAN v. THE STATE OF NEW YORK, #2004-033-057, Claim No. 106578, Motion Nos. M-67341, CM-67626


Synopsis



Case Information

UID:
2004-033-057
Claimant(s):
BARBARA KELLMAN and HOWARD KELLMAN
Claimant short name:
KELLMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106578
Motion number(s):
M-67341
Cross-motion number(s):
CM-67626
Judge:
JAMES J. LACK
Claimant's attorney:
Law Offices of Thomas F. LiottiBy: Thomas F. Liotti, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim arises from the alleged damages to Barbara and Howard Kellman (hereinafter "claimants") as the result of the alleged negligence by the judicial staff of Justice F. Dana Winslow of New York State Supreme Court. Claimants brought an order to show cause on May 30, 2002 seeking an order of attachment against real property owned by Ki Ping Chan. On May 31, 2002, Justice Winslow signed the order to show cause with a return date of June 4, 2002. On June 6, 2002 Justice Winslow signed the order of attachment which then remained in his chambers until July 9, 2002. On June 11, 2002, Ki Ping Chan transferred the real property in question to Yong Hui Xue. Claimants argue that it was mainly a ministerial error, not a judicial act, for the order of attachment which would have prevented the sale of the property not to be timely filed in the clerk's office.

The State of New York (hereinafter "State") moves to dismiss the claim[1] arguing that claimants fail to state a viable cause of action and that, in any event, the State is protected by absolute immunity. Further, defendant seeks to disqualify counsel for the claimants.

Claimants cross-move this Court for summary judgment pursuant to CPLR 3212.[2]

The doctrine of judicial immunity is one of the oldest concepts in our common law judicial system (See Floyd v Barker, 77 Eng. Rep. 1305 [Star Chamber 1607]). The concept was later adopted in the United States. In 1872, the Supreme Court in Bradley v Fisher, 80 US (13 Wall.) 335, recognized and embraced the doctrine. In Mosher-Simons v County of Allegany, 99 NY2d 214, 219, the Court of Appeals held that "it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing" (Tarter v State of New York, 68 NY2d 511, 518, 510 NYS2d 528, 503 NE2d 84 [1986]; see also Antoine v Byers & Anderson, 508 US 429, 435, 124 L Ed 2d 391, 113 S Ct 2167 [1993]). Judicial immunity discourages inappropriate collateral attacks on court rulings and fosters judicial independence by protecting courts and judges from vexatious litigation. Indeed, "most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability" (Forrester v White, 484 US 219, 229, 98 L Ed 2d 555, 108 S Ct 538 [1988]). Allowing members of the judiciary to exercise independent judgment, without the threat of legal reprisal, is "critical to our judicial system" (Tarter, 68 NY2d at 518). In Tucker v Outwater, 118 F3d 930, 933, the court developed:
a two-part test for determining whether a judge is entitled to absolute immunity from damage claims. [Stump v. Sparkman, 435 U.S. 349] First, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" Id. at 356-57 (emphasis added) (quoting Bradley, 80 U.S. at 351). Second, a judge is immune only for actions performed in his judicial capacity. Id. at 360-63; see also Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) (finding no immunity for assaulting litigant).

The concept of judicial immunity extends beyond the judge. In Weiner v State of New York, 273 AD2d 95, 97, the Court stated, "The normal work of a court clerk who participates in the processing of legal proceedings is generally viewed as ‘quasi-judicial,' thereby cloaking the clerk with judicial immunity (see Welch v State of New York, 203 AD2d 80, 81)." Weiner went on to state the necessity of extending the immunity to court clerks:
As the Seventh Circuit Court of Appeals aptly noted, it is necessary to extend judicial immunity to non-judicial court personnel performing their prescribed functions, in order to avoid "[t]he danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts" (Scruggs v Moellering, 870 F2d 376, 377, cert denied 493 US 956).
supra
at 98.

Judicial immunity extends only to "judicial acts" and not to ministerial process (Lowe v Letsinger, 772 F2d 308). The court delineated the elements of a judicial act:
Courts have considered the following factors in determining whether an act is judicial: (1) whether the act or decision involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge, Ex Parte Virginia, 100 U.S. at 348; (2) whether the act is normally performed by a judge, Stump, 435 U.S. at 362; and (3) the expectations of the parties, i.e., whether the parties dealt with the judge as judge, id.

supra
at 312.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, affd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

If the issue here was solely the timely signing of the order of attachment, it would clearly be a judicial act performed by a judge and not subject to judicial scrutiny. However, this order of attachment was signed by Justice Winslow on June 6, 2002, but remained in his chambers until July 9, 2002. Thus far, it is not known to this Court how or why the executed order stayed in the Justice's chambers for such a length of time. Clearly, a material question of fact exists concerning the time line between the signing of the order and its transference to the clerk's office. Therefore, the Court must deny both defendant's motion and claimants' cross-motion for summary judgment.

Next, the Court examines the issue as to defendant's request to disqualify claimants' counsel. On May 6, 2003, a preliminary conference was held by the Court with both parties present at which time such disqualification was raised. The Court issued an order directing defendant on or before June 30, 2003 to make a motion for claimants' counsel to be disqualified. Defendant failed to file the instant motion until September 2, 2003 and did not, prior to such filing, contact the Court to request an extension. While the Court may have initially agreed with defendant's arguments on disqualification, the motion is denied as untimely.

Accordingly, defendant's motion and claimants' cross-motion for summary judgment are denied. Defendant's motion to disqualify claimants' counsel is denied.












March 31, 2004
Hauppauge, New York

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




[1]The following papers have been read and considered on defendant's motion to dismiss: Notice of Motion dated August 29, 2003 and filed September 2, 2003; Affirmation of John M. Shields, Esq., in Support of Defendant's Motion with annexed Exhibits A-J dated August 29, 2003 and filed September 2, 2003; Memorandum of Law of John M. Shields, Esq. dated August 29, 2003 and received September 2, 2003; Memorandum of Law in Opposition to Defendant's Motion to Dismiss of Thomas F. Liotti, Esq. dated November 11, 2003 and received November 13, 2003.
[2]The following papers have been read and considered on claimants' cross-motion for summary judgment on liability: Notice of Cross-Motion for Summary Judgment dated November 6, 2003 and filed November 10, 2003; Affirmation in Opposition to Defendant's Motion to Dismiss and in Support of Claimants' Cross-Motion for Summary Judgment of Thomas F. Liotti, Esq. with annexed Exhibits A-D dated November 11, 2003 and filed November 13, 2003; Claimants' Memorandum of Law in Support of Cross-Motion for Summary Judgment of Thomas F. Liotti, Esq. dated November 11, 2003 and received November 13, 2003; Reply Affirmation in Support of Defendant and in Opposition to Claimants of John M. Shields, Esq. dated January 5, 2004 and filed January 9, 2004; Reply Affirmation in Support of Claimants' Cross-Motion and in Opposition to Defendant's Motion of Thomas F. Liotti, Esq. with annexed Exhibits A-B dated January 26, 2004 and filed January 27, 2004; Affidavit of Jean Lagrasta sworn to January 26, 2004 and filed January 27, 2004.