New York State Court of Claims

New York State Court of Claims

DAVEY v. THE STATE OF NEW YORK, #2005-029-503, Claim No. 110503, Motion No. M-69950


State's motion to dismiss granted on the basis of judicial immunity.

Case Information

PETER F. DAVEY The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Peter F. Davey, Esq., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 14, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant, State of New York, makes this pre-answer motion to dismiss pursuant to CPLR 3211 (a) (2) and (7) on the basis the Court does not have jurisdiction over the claim and the pleading fails to state a cause of action. The claim alleges that claimant was the defendant in a divorce proceeding before Justice Shapiro in Westchester County Supreme Court (Index No. 10437/00) (see Claim, Paragraph 2). Claimant contends that as an employee of the State, Justice Shapiro wrongly awarded claimant's ex-wife $542,509.00 despite proof that his ex-wife had committed perjury and other crimes and Justice Shapiro wrongly awarded claimant only $237,054.00 (id.). Claimant further contends that the Justice's order to sell his home at the price of $1.2 million instead of $1.6 million and appointing his ex-wife as the receiver served to reward her for having him falsely arrested on June 21, 2000 (id.). Claimant argues that Justice Shapiro acted wrongfully, illegally and unethically on issues of distribution and other issues (Davey Affirmation in Opposition, Paragraph 3).

The Court of Claims is a court of limited jurisdiction. With certain exceptions, none of which are presented here, the only proper defendant in this Court is the State of New York (Murph v State of New York, 105 Misc 2d 684). Individuals cannot be sued in this Court. Thus, the claim against Justice Shapiro individually is dismissed for lack of subject matter jurisdiction.

Judicial immunity bars any action against judges of the State for their judicial acts, and the State is not liable for a judicial officer's alleged errors. As a matter of long settled public policy, this immunity is extremely broad, extending to virtually all actions taken and decisions made in the performance of judicial functions. Unless the judicial acts were performed in the absence of subject matter jurisdiction, judicial immunity applies (Stump v Sparkman, 435 US 349 reh denied 436 US 951; Welch v State of New York, 203 AD2d 80; Colin v County of Suffolk, 181 AD2d 653, appeal denied, 80 NY2d 756; Sassower v Finnerty, 96 AD2d 585, 586, appeal dismissed, 61 NY2d 756). Allegedly libelous statements contained in a judge's written decision are absolutely privileged and cloaked with judicial immunity (Montesano v State of New York, 11 AD3d 436 ). Judicial immunity even extends to acts alleged to have been malicious or corrupt (Stump v Sparkman, supra; Murray v Brancato, 290 NY 52; Sassower v Finnerty, supra).

The claim before this Court challenges the following actions of the Supreme Court:
1. An order for sale of an asset and appointment of a receiver.
2. An order granting custody of a residence.
3. A failure to favorably determine claimant's charges of perjury.
4. An order awarding distribution.

Each of these decisions and rulings are within the subject matter jurisdiction of the court in which Justice Shapiro presides. Any related rulings are also part of the plenary jurisdiction of a Supreme Court Justice and the allegedly negligent and wrongful acts of the Court are cloaked with judicial immunity (Swain v State of New York, 294 AD2d 956). More importantly, any defects in the proceedings would more properly be raised in the context of the appellate process and not by what can only be viewed as an impermissible collateral attack.

The Court is aware that no immunity is afforded to a " . . . judicial officer who performs a ministerial act so as to injure another . . ." (Sassower v Finnerty, supra at 587) and that there are limited circumstances where a judge's conduct as a state officer may subject the State to liability (see Mullen v State of New York, 122 AD2d 300, appeal denied, 68 NY2d 609, cert denied, 480 US 938). No such conduct is established at bar. The Court concludes that claimant has only described protected judicial acts and has not asserted a viable cause of action against the State of New York. Accordingly, the State's motion for dismissal is granted and the claim is dismissed.

The following papers were read and considered by the Court on the State's motion to dismiss the claim:

Papers Numbered

Notice of Motion and Affirmation 1
Affirmation in Opposition and Exhibits attached 2

Filed Papers: Claim

July 14, 2005
White Plains, New York

Judge of the Court of Claims