New York State Court of Claims

New York State Court of Claims

MACKENZIE v. THE STATE OF NEW YORK, #2005-030-502, Claim No. 109658, Motion No. M-69194


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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 21, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read and considered on Defendant's motion to dismiss:
1,2 Notice of Motion; Affirmation in Support by Elyse J. Angelico, Assistant Attorney General, and attached exhibit

  1. Filed Papers: Claim
No Opposition Filed.[1]

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Charles Rudd Mackenzie, the Claimant herein, alleges in Claim Number 109658 that on or about July 10, 2003, and/or August 1, 2003, Justice Donovan of the Westchester County Supreme Court - apparently during the pendency of a civil trial over which the judge was presiding - held him in criminal contempt of court, directed that he surrender his United States passport and directed that court officers handcuff him in open court. Claimant further alleges that Justice Donovan told a newspaper reporter that Claimant had misrepresented to the Court that there were no mortgages or liens on property presumably at issue in the lawsuit, and an article containing this information was published on or about August 13, 2003. Claimant was subsequently found guilty of misdemeanor criminal contempt and sentenced to thirty (30) days imprisonment. According to the Claim, Mr. Mackenzie obtained a temporary stay of his prison commitment from the Appellate Division, Second Department, on or about July 11, 2003, which was lifted by the appellate court on or about July 20, 2003. Although Claimant indicates he served the thirty (30) day sentence, it is unclear when it started or ended. He claims that after he served his sentence, he sought the return of his passport from Justice Donovan. The passport was not returned.

The present Claim was served upon the Office of the Attorney General on August 25, 2004, and filed in the office of the Chief Clerk of the Court of Claims on July 27, 2004. Fifteen causes of action are alleged stemming from the facts alleged above, including alleged violations of the United States Constitution, intentional infliction of emotional distress, slander/defamation, assault, battery, trespass to chattels, conversion, libel, false imprisonment, malicious prosecution, invasion of privacy, and abuse of process.

The Defendant moves to dismiss the claim on six different grounds, largely premised on Claimant's failure to adequately state causes of action justiciable in this Court. First, that it is untimely, having been served well after expiration of any applicable statute of limitations. Second, that it states causes of action not within the subject matter jurisdiction of the Court of Claims. Third, that the claim does not comply with Court of Claims Act §11(b) requiring that it ". . . state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . "; and, with respect to any defamation, libel or slander causes of action, does not comply with Civil Practice Law and Rules §3016(a). Fourth, that this is an improper proceeding, in that the Court of Claims does not have appellate jurisdiction over judgments rendered in New York State Supreme Court. Fifth, Claimant has failed to state a cause of action for unjust conviction and imprisonment under Court of Claims Act §8-b. Sixth, the Court of Claims does not have subject matter jurisdiction over federal constitutional tort claims.

Assuming a date of accrual of August 20, 2003[2] with respect to any claims arising from the imprisonment, and assuming a date of accrual of August 13, 2003 with respect to the libel/slander/defamation causes of action, and further assuming dates of accrual for the other intentional torts alleged in and around July and August 2003, the applicable statutes of limitation expired within ninety (90) days of those dates: one (1) year before the claim herein was served. See Court of Claims Act §10(3-b). There is no indication that a sufficiently specific Notice of Intention to file a claim was timely served upon the Attorney General's Office in order to extend the time within which to serve and file a claim by one (1) year from the date of accrual. See Court of Claims Act §§10(3-b) and 11(b).

The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10. Accordingly, on this ground alone, Claim number 109658 must be dismissed.

Additionally, the claim itself does not comply with Court of Claims Act §11(b) in that it lacks specificity with respect to the time when and the place where such claim arose, and also lacks specificity with regard to any cause of action for libel or slander in that the particular words complained of are not set forth. Civil Practice Law and Rules §3016(a). From a reading of the claim, based upon the vague and conclusory assertions therein it cannot be discerned when the allegations arose, and how any State action is the proximate cause of measurable money damages.

The Court of Claims is a court of limited jurisdiction empowered generally to award damages in tort or contract for valid claims against the State of New York. See Court of Claims Act §9. Its subject matter jurisdiction does not depend on how a Claimant chooses to frame causes of action alleged in his Claim, but rather depends upon what the actual issues are. Any claims against individual employees are clearly outside this Court's jurisdiction, and, given the lack of clarity in the language in the claim, it is impossible to pinpoint exactly what other conduct Claimant may be alleging forms the basis of a claim against the State of New York.

With respect to the aspect of Defendant's motion brought pursuant to Civil Practice Law and Rules §3211(a)(7), seeking dismissal of the claim for failure to state a cause of action, since no evidentiary material has been proffered on the motion, the court must look only at the pleading at issue to determine whether any legally cognizable claim has been stated. Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). The Court also notes that no opposing papers have been filed in connection with this motion.

The State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, ". . . public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State . . . (citation omitted)," De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496, 498 (2d Dept 1984). Accordingly, the aspect of the claim asserting intentional infliction of emotional distress does not state a viable cause of action.

Furthermore, even viewing all the facts asserted in the claim as true, no other cause of action against the State of New York has been made out. 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. Unless the judicial acts were performed without any jurisdiction over the subject matter, judicial immunity applies. Stump v Sparkman, 435 US 349 (1978) reh denied 436 US 951; Colin v County of Suffolk, 181 AD2d 653 (2d Dept 1992), appeal denied, 80 NY2d 756 (1992); Sassower v Finnerty, 96 AD2d 585, 586 (2d Dept 1983)[3], appeal dismissed, 61 NY2d 756 (1984); See also Murray v Brancato, 290 NY 52 (1943). Even allegedly libelous statements contained in a judge's written decision are absolutely privileged, and cloaked with judicial immunity. See Montesano v State of New York, 11 AD3d 436 (2d Dept 2004).

In the court proceeding referred to by Claimant, the judge appears to have been rendering decisions and rulings in accordance with the subject matter jurisdiction of the court in which he presided. Any related rulings - such as findings of criminal and civil contempt [See Judiciary Law Article 19] - are also part of the plenary jurisdiction of a Supreme Court justice, and a Court's inherent powers to maintain order in his courtroom.[4]. . . (citations omitted), and the allegedly negligent acts of the Court and its clerks in connection with the assignment are cloaked with judicial immunity . . . (citations omitted)." Swain v State of New York, 294 AD2d 956 (4th Dept 2002). In Family Court, an indigent respondent in a termination of parental rights proceeding has the right to assigned counsel [See §262 (a)(iv) Family Court Act; Article 6 Social Services Law], but also may waive that right. See e.g. Harley v State of New York, 186 AD2d 324, 325 (3d Dept 1992), appeal dismissed, 81 NY2d 781 (1993); Lombardoni v Boccaccio, 121 AD2d 828, 829 (3d Dept 1986); but cf. LaPier v Deyo, 100 AD2d 710 (3d Dept 1984)[5]. Actions by court personnel and county clerks, are similarly immune as quasi-judicial acts. See e.g. Welch v State of New York, 203 AD2d 80 (1st Dept 1994). 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, 301 (3d Dept 1986), appeal denied, 68 NY2d 609 (1986), cert denied, 480 US 938 (1987). Nonetheless, the Claimant has only described protected judicial acts, and has not asserted a viable cause of action against the State of New York.

Additionally, those parts of the claim alleging violations of the United States Constitution must also be dismissed. It is well established that claims alleging violation of an individual's rights under the United States Constitution are not actionable in the Court of Claims. See Brown v State of New York, 89 NY2d 172 (1996). If the present claim can be read to allege violation of provisions of the New York State Constitution - and this is not clear from a fair reading of the claim - it is also established that not every violation of a State constitutional provision will have a remedy implied in the Court of Claims. Brown v State of New York, supra; Remley v State of New York, 174 Misc 2d 523 (Ct Cl 1997). As noted, the infirmities complained of would be more appropriately addressed through the appellate process.

Finally, Court of Claims Act § 8-b - the Unjust Conviction and Imprisonment Act - requires that
". . . [i]n order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that: (a) he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence; and (b)(i) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of . . . [certain enumerated grounds in Criminal Procedure Law]; and (c) his claim is not time-barred by the provisions of . . . [§8-b(7), calling for claims to be filed ‘within two years after the pardon or dismissal.']."(emphasis added).

The predicate for bringing a claim under this statute is "pardon or dismissal." Thus, where a reversal of a conviction was based upon a double jeopardy finding, no claim under the act would lie ". . . [s]ince the very essence of a claim under Court of Claims Act §8-b is the innocence of the acccused . . . " Fudger v State of New York, 131 AD2d 136, 139 (3d Dept 1987), appeal denied, 70 NY2d 616 (1988); See also Reed v State of New York, 78 NY2d 1, 9 (1991). Claimant's conviction has not been reversed or vacated, nor is there an allegation in his claim to that effect. Claimant's remedies for any perceived violations are through the appeals process at this juncture, not via a claim under the Unjust Conviction and Imprisonment Act codified at Court of Claims Act §8-b.

Accordingly, State's motion for dismissal is granted and Claim Number 109658 is hereby dismissed in its entirety for lack of personal and subject matter jurisdiction, and for failure to state a cause of action against the State of New York. Civil Practice Law and Rules § 3211(a)(7).

January 21, 2005
White Plains, New York

Judge of the Court of Claims

[1] The motion was originally returnable on November 3, 2004, and was adjourned on consent at Claimant's request until December 1, 2004, and then again to January 15, 2005. On neither occasion was the Court's permission sought for the adjournment.
[2] This is premised on the indication that the stay of the term of his imprisonment was lifted on July 20, 2003, and a presumption that he served his sentence thereafter.
[3] "Judicial immunity extends to all judges and encompasses all judicial acts, even if such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. . . (citations omitted) There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not (Murray v Brancato, supra) . . . The acts complained of in the amended complaint were performed by the . . . [respondent Surrogates] while in the exercise of their judicial roles. Although said acts may have been in excess of their jurisdiction [based on knowledge acquired outside the evidence before them], they were not performed in the complete absence of jurisdiction . . . " Sassower v Finnerty, supra, at 586-587.

[4] In the criminal law context: "The Court has inherent power to assign counsel for an indigent defendant

[5] No judicial immunity where town judge related by consanguinity to one of the litigants; should have dis- qualified himself. By not disqualifying himself, acting in "clear absence of jurisdiction."