New York State Court of Claims

New York State Court of Claims

ROSENSTEIN v. THE STATE OF NEW YORK, #2005-016-022, Claim No. 92803, Motion No. M-68704


Claim was dismissed under the doctrine of judicial immunity.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Moshe Rosenstein, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 3, 2005
New York

Official citation:

Appellate results:
AFFIRMED 37 AD3D 208 1ST DEPT 2/8/07
See also (multicaptioned case)


This is defendant’s motion pursuant to CPLR 3211 and 3212 for an order dismissing the claim of Moshe Rosenstein. In his underlying claim, Mr. Rosenstein alleges that in 1994, his landlord filed a non-payment petition against him, and that Housing Court Judge Arthur Scott changed the November 15, 1994 trial time without notifying him in order to grant his landlord a default judgment. Scott was later charged with taking bribes in landlord-tenant cases during 1993 and 1994 and pled guilty to Grand Larceny by Extortion II, Bribe Receiving III and Scheme to Defraud I. Matter of Arthur R. Scott Jr., 222 AD2d 67, 643 NYS2d 346 (1st Dept 1996). Claimant does not dispute defendant’s assertion that the default judgment against him was later vacated and he was not evicted. He seeks monetary damages in this Court for “[p]ersonal injuries, including pain and suffering . . . [v]iolation of Civil Rights . . . [f]ear, humiliation, emotional distress, etc. . . [c]osts and attorneys’ fees . . . [and] [m]edical bills and expenses . . .” It is well settled that judicial immunity bars claims against judges of the State of New York for their judicial acts, and the State is not liable for the misconduct of its judges on the theory of respondeat superior. See, e.g., Murray v Brancato, 290 NY 52 (1943); Harley v State of New York, 186 AD2d 324, 587 NYS2d 805 (3d Dept 1992). This immunity is absolute - - even where the judge’s acts were malicious or in excess of his or her authority - - unless the acts complained of were performed in the clear absence of subject matter jurisdiction. See, e.g., Lombardoni v Boccaccio, 121 AD2d 828, 504 NYS2d 260 (3d Dept 1986). There was clearly subject matter jurisdiction here, where Scott, a Housing Court judge, presided over a landlord-tenant matter. Accordingly, under the doctrine of judicial immunity, the State is not liable for the actions of Judge Scott.

To the extent that the claim can be construed to assert wrongdoing on the part of Judges Judith Kaye, Jacqueline Silbermann, Barry Cozier and Salvador Collazo in terms of their responses to claimant’s complaints about Judge Scott, such judges are also covered by the doctrine of judicial immunity.

Claimant points out that his claim also alleges malfeasance by persons other than judges, to wit, his landlord’s attorney; Inspector General William Gallagher; and court officers and clerks.

As to his landlord’s attorney, Rosenstein has articulated no viable theory as to why the State would be liable for such person’s acts. Similarly, he has failed to articulate a viable claim based on the Inspector General’s investigation of complaints against Judge Scott.

With regard to court officers and clerks, to the extent the claim can be construed to allege that such persons transferred Rosenstein’s case from another judge to Judge Scott or rescheduled the November 15, 1994 trial from 2:00 p.m. to 10:00 a.m.[1], such activities are also protected by the doctrine of judicial immunity. See, e.g., Weiner v State of New York, 273 AD2d 95, 97, 710 NYS2d 325, 327 (1st Dept 2000) (citations and internal punctuation omitted), in which the First Department stated that “judicial immunity applies to all acts of auxiliary court personnel that are basic and integral parts of the judicial function, unless those acts are done in the clear absence of all jurisdiction.”

For the foregoing reasons, having reviewed the parties’ submissions[2], IT IS ORDERED that motion no. M-68704 be granted and claim no. 92803 be dismissed.

March 3, 2005
New York, New York

Judge of the Court of Claims


  1. [1]
    In his opposition papers, claimant maintains that Judge Scott’s court clerk “changed the time from 2 p.m. to 10 a.m.” In his claim, he alleges that Judge Scott did the changing.
  2. [2]
    The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through C; claimant’s affirmation in opposition with undesignated attachments; defendant’s reply affirmation; and claimant’s “Reply Affirmation to State’s 9/10/04 Reply Affirmation” with undesignated attachments.