VAN ALLEN v. THE STATE OF NEW YORK, #2005-015-004, Claim No. 109780, Motion No.
Court lacked jurisdiction to hear and decide claim based upon the alleged
failure of the NYS Secretary of State to enforce filing requirements of "anti
secret organization law."
H. WILLIAM VAN ALLEN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
H. William Van Allen, Pro Se
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
February 2, 2005
See also (multicaptioned
Defendant's pre-answer motion to dismiss the claim on the ground that the Court
lacks subject matter jurisdiction and personal jurisdiction over the defendant
and that the claim fails to state a cause of action is granted. The claim seeks
damages for the alleged failure of the New York State Secretary of State, the
New York State Board of Elections and various unnamed public officers to enforce
the filing requirements of the "Anti-Secret Organization Law" (Civil Rights Law
§ 53). It is alleged that the claim accrued on May 28, 2004 in the second
floor filing office of the New York State Department of State, 41 State Street,
Albany, New York. The claim provides no other specific details, including the
acts or omissions of the Secretary of State, Board of Elections or other unnamed
public officers which underlie this action.
Before answering the claim defendant moved pursuant to CPLR 3211 for an order
dismissing the claim for lack of subject matter jurisdiction, lack of personal
jurisdiction over the defendant and for the claim's failure to state a cause of
action. The self-represented claimant opposed the motion by an affidavit in
which he took issue in conclusory fashion with the allegations in defense
counsel's affirmation in support of the motion.
It is well settled that on a motion to dismiss a claim for failure to state a
cause of action the Court must afford the pleading a liberal construction,
accept claimant's allegations as true and accord him or her the benefit of every
favorable inference (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314;
Leon v Martinez, 84 NY2d 83).
Section 53 of the New York State Civil Rights Law requires the filing of
documents by certain membership corporations and unincorporated associations.
Failure to comply with the filing requirements is a misdemeanor for which a fine
of not less than one thousand dollars nor more than ten thousand dollars may be
imposed (see Civil Rights Law § 56). The statute also empowers the
Attorney General to sue on behalf of the people of the State of New York to
restrain violations (see Civil Rights Law§ 57). The Civil Rights
Law does not contain any provisions authorizing suit by a private citizen to
enforce the section 53 filing requirements or to recover damages for the
government's failure to enforce the statute.
Even viewed from the liberal perspective required in determining a motion to
dismiss for failure to state a claim, the instant claim fails to state any cause
of action cognizable under New York law. First, the claim does not allege how
claimant was injured or in what manner the Secretary of State, Board of
Elections or any other public officer caused or contributed to any such injury.
Secondly, it is well settled that although the State has waived its historical
immunity to suit, the waiver is not absolute (Alston v State of New York,
97 NY2d 159). Immunity has been retained for government actions which require
the exercise of discretion (Arteaga v State of New York, 72 NY2d 212)
"[D]iscretionary or quasi-judicial acts involve the exercise of reasoned
judgment which could typically produce different acceptable results whereas a
ministerial act envisions direct adherence to a governing rule or standard with
a compulsory result" (Tango v Tulevech, 61 NY2d 34, 41). Actions
involving the conscious exercise of discretion of a judicial or quasi-judicial
nature receive absolute immunity while other discretionary actions are entitled
to only qualified immunity (see Arteaga v State of New York,
supra at 216). In this regard the U.S. District Court for the Northern
District of New York observed in Leland v Moran, 235 F Supp 2d 153,
[A]bsent some constitutional mandate, public officials have discretion whether
to enforce statutes. Gaynor v Rockefeller, 15 NY2d 120, 131;
Perazzo, 30 AD2d at 180, see also N.Y. Statutes § 153.* * *
The obligation to enforce the laws is not simply a ministerial act. 'A
ministerial act . . .has been defined as a specific act which the law requires a
public officer to do in a specified way on conceded facts without regard to his
own judgment.' Posner v Levitt, 37 AD2d 331, 332 (3d Dep't 1971).
Whether a particular statute has been violated depends on the specific facts and
circumstances and, thus, necessarily involves the exercise of judgment and
discretion. Moreover, no municipality has the resources necessary to prosecute
each and every violation of the law and the executive must, therefore, exercise
his or her discretion in determining how to allocate those finite resources.
See Kerness v Berle, 85 AD2d 695, 696 (2d Dept' 1981), affd
57 NY2d 1042 (1982). * * * [T]he duty to enforce the laws, and how to go about
enforcing those laws, involves discretion.
The decision whether to pursue a criminal proceeding for an alleged failure to
file the required documents and statements pursuant to Civil Rights Law §53
clearly involves an act of discretion of a quasi-judicial nature and is entitled
to absolute immunity (Moore v Dormin, 252 AD2d 421; Hirschfeld v City
of New York, 253 AD2d 53). The decision whether to seek to restrain
violations pursuant to Civil Rights Law § 57 is likewise a discretionary,
quasi-judicial determination of the Attorney General for which the State may not
be held liable (see Tucker v City of New York, 184 Misc 2d 491).
Since absolute immunity applies under these circumstances the claim must be
dismissed as to the Secretary of State and, to the extent such a claim was
asserted, the Attorney General as well.
A similar conclusion is reached as to that portion of the claim pertaining to
the New York State Board of Elections and/or its Commissioners since the claim
fails to allege any facts under which liability may be imposed against them.
The claim therefore fails to state a cause of action as to the NYS Board of
Elections, its Commissioners and their staff.
On the motion, defendant has additionally alleged that claimant failed to serve
the claim by a method prescribed by Court of Claims Act § 11 (a) (i) and
the Court therefore lacks jurisdiction to hear and decide the claim.
Section 11 (a) (i) in relevant part provides:
[Eff. until Sept. 1, 2005, pursuant to L.2002, c. 110, § 3. See also,
par. (i), below.] The claim shall be filed with the clerk of the court; and
except in the case of a claim for the appropriation by the state of lands, a
copy shall be served upon the attorney general within the times hereinbefore
provided for filing with the clerk of the court either personally or by
certified mail, return receipt requested, or, where authorized by rule of the
chief administrator of the courts and upon consent of the attorney general, by
facsimile transmission or electronic means, as defined in subdivision (f) of
rule twenty-one hundred three of the civil practice law and rules, in such
manner as may be provided by rule of court. Any notice of intention shall be
similarly served upon the attorney general within the times hereinbefore
provided for service upon the attorney general. Service by certified mail,
return receipt requested, upon the attorney general shall not be complete until
the claim or notice of intention is received in the office of the attorney
general. Personal service upon the attorney general shall be made in the same
manner as described in section three hundred seven of the civil practice law and
"The requirements of Court of Claims Act § 11 are jurisdictional and must
be strictly construed, and failure to comply with the service requirements
therein results in a lack of jurisdiction (see Finnerty v New York
State Thruway Auth., 75 NY2d 721; Pagano v New York State Thruway
Auth., 235 AD2d 408)" (Martinez v State of New York, 282 AD2d
Defense counsel has alleged that the Attorney General's Office does not accept
service by facsimile transmission (fax) and that the purported service of the
claim in that manner on August 27, 2004 upon Assistant Attorney General Kathleen
Arnold was ineffective. The Court agrees.
As to service by electronic means defense counsel alleges that claimant failed
to comply both with Rule 206.5 (a) of the Uniform Rules for the Court of
which requires service of a notice upon
the defendant identifying the claim as one subject to electronic filing and the
specific conditions required for electronic claim filing posted on the Attorney
General's web page (see
movant's Exhibit C). Ms. Arnold avers that
claimant failed to use the designated email address and further failed to use
the required Portable Document Format (PDF).
Claimant has not refuted the Attorney General's allegations of defective
service and the Court finds that claimant's attempted service upon the Attorney
General by electronic means and facsimile were without legal effect.
Absent proof that the claim was served in accordance with the requirements of
Court of Claims Act § 11 (a) (i) the Court lacks jurisdiction over the
defendant and the claim must be dismissed (Commack Self-Serv. Kosher Meats v
State of New York, 270 AD2d 687) on that basis as well.
Finally, in Lepkowski v State of New York, (1 NY3d 201, 207) the Court
of Appeals held that a claim must provide specific information regarding: (1)
the nature of the claim; (2) the time when it arose; (3) the place where it
arose; (4) the items of damage or injuries claimed to have been sustained; and
(5) the total sum claimed. The Court strictly construed the Court of Claims Act
provisions conditioning suit against the State stating: "[t]he Court of Claims
Act does not require the State to ferret out or assemble information that
section 11 (b) obligates the claimant to allege (Cobin v State of New
York, 234 AD2d 498, 499)" (id. at 208).
Although the instant claim alleges the place where (41 State Street, Albany)
and time when (May 28, 2004) the claim arose it fails to provide specific
allegations as to the nature of the claim and any damage or injury sustained.
Paragraph 3 of the claim alleges:
3. Details of said acts or omissions are as follows: On or about May 28th 2004
with staff in the following days with the NYS-Department of State second floor
filing office of New York State Secretary of State Office, 41 State Street
Albany, NY 12231-0001 followed by voice and email communications.
The alleged detail provided above does not adequately describe the nature of
the claim in that it provides no information relating the acts or omissions of
State officers or employees upon which liability is sought to be predicated.
The damages asserted in the claim are equally non-specific as well as
speculative. As a result, the claim must be dismissed upon the additional
ground that it fails to provide the specificity required by Court of Claims Act
§ 11 (b).
February 2, 2005
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated October 5, 2004;
Affirmation of Kathleen M. Arnold dated October 5, 2004 with exhibits;
Affidavit of H. William Van Allen sworn to November 10, 2004.
See also § 206.5-a of the Uniform Rules
regarding filing by electronic means.