Defendant's cross-motion to dismiss the instant claim for lack of jurisdiction
and for failure to state a cause of action is granted. Claimant's motions to
strike the affirmative defenses set forth in paragraphs 3 through 8 of
defendant's answer for lack of merit and for an order granting claimant an
immediate jury trial or summary judgment are denied as academic. Claimant's
motion to amend the amended claim
17, 2005 is likewise denied. The amended claim filed November 26, 2004 is a
confusing, disjointed and somewhat contradictory document which purports to
assert numerous causes of action without separately stating and numbering each
as required by 22 NYCRR § 206.6 (b). It also names as defendants
individuals and entities over which this Court has no jurisdiction.
While nominally seeking $200,000,000 in money
the claim in essence requests
equitable relief in the form of an order vacating claimant's criminal
conviction, ordering his immediate release and granting a permanent injunction
preventing prosecutors from instituting criminal proceedings against him, his
wife and daughter.
Defendant moved to dismiss the claim pursuant to CPLR 3211 (a) (2), (4), (5)
and (7) on the grounds that this Court lacks subject matter jurisdiction, there
is another action pending between the same parties upon the same cause of
action, the claim is barred by collateral estoppel and/or res judicata, and the
pleading fails to state a cause of action. Since the defendant's motion was
made after service of its answer responding to the amended complaint and since
the defense of another action pending was not raised in said answer dismissal of
the claim upon that ground (i.e., pursuant to CPLR 3211 [a] ) is deemed
waived and accordingly denied (see CPLR 3211 [e]).
The remaining bases for dismissal were either raised in the answer (collateral
estopped/res judicata) or may be raised by motion at any time subsequent to
service of the responsive pleading or in a later pleading (see CPLR 3211
[e]). The allegations set forth in defense counsel's affirmation in support of
the motion along with the exhibits incorporated therein by reference are
sufficient to merit consideration of the defendant's remaining
It is settled that the Court of Claims is a Court of limited jurisdiction
empowered to award damages in appropriation, contract or tort for claims against
the State of New York (see Court of Claims Act § 9) and other
specified entities (see e.g. Education Law § 6224 (4); Public
Authorities Law § 361-b; Public Authorities Law § 2622).
It is established, however, that the Court is "without authority to hear
claims against a county or any individual county employee" (Guarneri v State
of New York
, Ct Cl, [Claim No. 105608, M-65210, UID # 2002-019-541] Lebous,
). Thus, the instant claim must
be dismissed as against Suffolk County Executive Steve Levy, Suffolk County
Attorney Christine Malafi, Ex-Suffolk County District Attorney James Catterson,
Jr., Suffolk County District Attorney Thomas J. Spota III, Suffolk County
Assistant District Attorneys George Duncan, [Colin] Astarita and Guy
Arcidiacono, Suffolk County Police Detectives Peter Falcetta and Eugene Lopez,
Suffolk County Patrol Officers Gary Thompson and John Pitka, the Suffolk County
Police Department and Suffolk County (see Martocci v County of Ulster,
, Ct Cl [Claim No. 104345, Motion Nos. M-63627, M-63660, M-63690,
M-63692, M-63856, UID # 2001-028-557] Sise, J., unreported).
Furthermore, this Court has no jurisdiction over an individual State employee
"whether he is named individually or in his [or her] official capacity as a
State employee" (Lockwood v State of New York, Ct Cl [Claim No. 109762,
M-68894, UID # 2004-009-65] Midey, J., unreported). Dismissal of the claim is
therefore granted against the State employees identified in the caption of the
amended claim including Governor George Pataki, Attorney General Eliot Spitzer,
DOCS Commissioner Glenn Goord, DOCS Deputy Commissioner Anthony Annucci,
Assistant Attorney General Patricia Hingerton, Peter Drago, the Attorney
General's Director of Public Information and Correspondence, Director of Inmate
Grievances (CORC) Thomas Eagen, Mid-State Correctional Facility Superintendent
Kenneth Perlman and Correction Sergeant Corey and Correction Lieutenant Casey.
Nor may defendants Andrew J. Schatkin, Esq. and Mark Diamond, Esq., whose roles
in this drama have not been fully explained, be sued in this Court.
In addition it is well settled that the State "may not be held liable for the
actions of a state- employed judge where, as here, those actions are cloaked
with judicial immunity (see Swain v State of New York, 294 AD2d
956; Weiner v State of New York, 273 AD2d 95, 97; Welch v State of
New York, 203 AD2d 80, 81; Harley v State of New York, 186 AD2d 324;
Word v City of Mount Vernon, 65 AD2d 622)" (Montesano v State of
New York, 11 AD3d 436). "The rule [of judicial immunity] which exempts
Judges of courts of record from liability for all acts done in the exercise of a
judicial function is deeply rooted in the common law (Murray v Brancato,
290 NY 52, 55 citing Yates v Lansing, 5 Johns 282, 291; and
Bradley v Fisher, 13 Wall [80 US] 335, 351)" (Lombardoni v
Boccaccio, 121 AD2d 828). "Judges have absolute immunity from suit for
judicial acts performed in their judicial capacities. Mireles v Waco,
502 US 9, 12; see also Oliva v Heller, 839 F2d 37 (2d Cir 1988).
This absolute judicial immunity is not overcome by allegations of bad faith or
malice, nor can a judge 'be deprived of immunity because the action he took was
in error . . . or was in excess of his authority' (Mireles, 502
US at 13)" (Wood v Incorporated Village of Patchogue, 311 F Supp.
2d 344). There are but two exceptions to the rule of judicial immunity, the
first is where the judge is not acting as a judge and the second where the
judge though acting under color of judicial authority lacks any jurisdiction to
support the action taken (see Alvarez v Snyder, 264 AD2d 27, 31;
Despite claimant's conclusory allegations that the judges named in the claim
acted "in the absence of jurisdiction" he offered no proof in admissible form to
establish this proposition either in opposition
to the defendant's motion
or in support of his own motion for summary judgment. Nor has claimant
demonstrated the existence of a material issue of fact in that regard. Absent
such proof the allegations set forth in the claim require the conclusion that
the acts of Chief Judge Judith S. Kaye, Associate Judges George Bundy Smith and
Richard Wesley of the Court of Appeals; Presiding Judge Gail Prudenti, Associate
Judge Thomas A. Adams and other named members of the Supreme Court, Appellate
Division, Second Department: Fred T. Santucci, William D. Friedman, Daniel F.
Luciano, Reinaldo E. Rivera, and Suffolk County Court Judge James
were cloaked with judicial immunity.
To the extent that acts of commission or omission are ascribed to the foregoing
judges it appears from this record that all such acts were performed within the
context of a criminal action or in conjunction with appeals or applications for
leave to appeal from a criminal conviction and were therefore judicial acts
within the jurisdiction of the respective judges. Under such circumstances the
doctrine of judicial immunity shields the State of New York from any liability
to the claimant for such actions or omissions.
As to any cause of action alleged against the State of New York, the Court is
required to afford a pleading a liberal construction, accept claimant's
allegations as true and accord him or her the benefit of every favorable
inference on a defendant's motion to dismiss a claim for failure to state a
cause of action (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314;
Leon v Martinez, 84 NY2d 83). Additionally, since actions in this Court
depend upon the Legislature's waiver of sovereign immunity the conditions to
suit contained in Court of Claims Act § 11 must be strictly construed.
With regard to the specificity required of a claim the Court of Appeals held in
Lepkowski v State of New York (1 NY3d 201) that section 11 (b) of the
Court of Claims Act places five specific substantive conditions upon the State's
waiver of sovereign immunity by requiring the claim to specify "(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' ". Failure to comply with what the Court described as
the substantive pleading requirements of Court of Claims Act § 11 (b)
renders a claim jurisdictionally defective (Lepkowski, supra at
It is apparent that the instant claim fails to state any viable cause of action
against the State of New York. The claim does not allege how the claimant has
been injured or when any alleged injuries occurred. Since claimant's criminal
conviction was upheld on appeal he has no cause of action for unjust conviction
and imprisonment pursuant to Court of Claims Act § 8-b. To "recover under
[that] statute, a claimant must also demonstrate innocence of the crime for
which he or she was convicted, and that his or her conviction was pardoned,
reversed or vacated on one of several enumerated grounds (see Court of
Claims Act § 8-b ; Robinson v State of New York, 228 AD2d 52, 54,
lv denied 89 NY2d 812)" (Niver v State of New York, 12 AD3d 51,
52). No such showing has been made here.
To the extent that claimant may have intended to allege a civil conspiracy,
New York does not recognize an independent tort of civil conspiracy. Such a
cause of action is available only if there is evidence of an actionable
underlying tort (see Brenner v American Cyanamid Co., 288 AD2d
869; Baker v Vanderbilt Co., 260 AD2d 750; Le Sannom Bldg. Corp. v
Dudek, 177 AD2d 390). The instant claim provides no facts from which such an
underlying cause of action might be discerned.
Assuming arguendo that claimant was seeking to allege a criminal conspiracy he
cannot seek legal redress in this Court nor may he seek to recover monetary
compensation for alleged criminal activity in any Court (see Criminal
Procedure Law § 20.40; Penal Law § 20.00; People v Ribowsky, 77
As to any cause of action arising out of threats allegedly made by DOCS
personnel to convince claimant to desist from repetitive CPL § 440 motions,
allegedly at the behest of Suffolk County Court Judge Hudson, the claim is
jurisdictionally defective since it neither specifies a date nor time when the
activity allegedly occurred nor in what manner claimant was injured (see
Lepkowski, supra) since by his own admission claimant continued to
file CPL § 440 motions.
Lastly, a claim for false imprisonment accrues when an inmate's confinement
ceases (see Herring v State of New York, Ct Cl [Claim No. 96484,
Motion No. M-61552, UID # 2000-007-037] Bell, J., unreported; Burns v State
of New York, Ct Cl [Claim No. 102445, Motion No. M-64498, UID #
2002-028-016] Sise, J., unreported). Since claimant's criminal conviction was
affirmed on appeal and his incarceration continues no such cause of action has
The Court discerns no other potential causes of action including any apparently
meritorious constitutional tort claim (see Vasile v State of New
York, Ct Cl [Claim No. 99806, Motion No. M-61844, UID #2000-019-535] Lebous,
For all of the above reasons defendant's motion to dismiss the claim is granted
and claimant's motions to strike the specified affirmative defenses and for
summary judgment (or jury trial) are denied as academic.
Finally, by unsworn letter dated May 13, 2005 claimant sought leave to further
amend his previously amended claim to add causes of action for constitutional
tort and conspiracy stemming, according to the claimant, from a decision of the
Appellate Division, Second Department dated March 18, 2005. That decision
apparently rejected claimant's most recent attempt to challenge his
long-standing conviction by means of his eighth motion pursuant to Criminal
Procedure Law § 440.10 (1) (a) - (h) or § 460.15.
The Attorney General opposed the request.
Initially the Court notes that claimant's application lacks a notice of motion
or order to show cause and is therefore improper (see CPLR 2211).
Secondly, while it purports to be verified the document was not signed before a
notary public and is therefore without legal effect. However, since defense
counsel failed to raise an objection to these technical defects they are deemed
waived and the merits of the "motion" may be addressed (see Sam v Town
of Rotterdam, 248 AD2d 850, lv denied 92 NY2d 804).
Despite claimant's characterization of this application as being a motion to
convert the claim pursuant to CPLR 103 (c) it is in essence a motion for leave
to amend the previously amended claim pursuant to CPLR 3025 (b). Such a motion
is addressed to the sound discretion of the Court (Esposito v Billings,
103 AD2d 956, 957). While leave to amend a pleading should, in general, be
freely given (see CPLR 3025 [b]) it is well settled that "[i]n
determining whether to grant leave to amend a pleading, a court must examine the
underlying merit of the causes of action asserted therein, since to do otherwise
would be wasteful of judicial resources (see, Wieder v Skala, 168
AD2d 355)" (McKiernan v McKiernan, 207 AD2d 825). "When seeking leave to
amend a pleading, it is incumbent upon a movant to make 'some evidentiary
showing that the claim can be supported' (Cushman & Wakefield v John
David, Inc., 25 AD2d 133, 135)" (Mathiesen v Mead, 168 AD2d 736,
737). The Appellate Division, Third Department, has held with regard to a
motion seeking leave to amend a pleading that "[t]he trial court is obliged to
satisfy itself that the proposed claim has merit . . . " (CFJ Assocs. of N.Y.
v Hanson Indus., 260 AD2d 917, 919).
In the instant matter the claimant has failed to submit a proposed amended
claim from which the merit of the causes of action sought to be asserted could
be determined. Even viewed liberally, claimant's letter motion is patently
insufficient to establish that his proposed additional causes of action sounding
in constitutional tort and conspiracy arising from the actions of the Appellate
Division, Second Department on March 18, 2005 have any merit whatsoever.
Claimant's motion is therefore denied.