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
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
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
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
436 US 951; Colin v County of Suffolk
, 181 AD2d 653 (2d Dept
1992), appeal denied
, 80 NY2d 756 (1992); Sassower v Finnerty
AD2d 585, 586 (2d Dept 1983)
, 61 NY2d 756 (1984); See also Murray v Brancato
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
. . . (citations omitted)
and the allegedly negligent acts of the Court and its clerks in connection with
the assignment are cloaked with judicial immunity . . . (citations
." 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
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
, 121 AD2d 828, 829 (3d Dept 1986); but cf. LaPier v
, 100 AD2d 710 (3d Dept 1984)
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
Finally, Court of Claims Act § 8-b - the Unjust Conviction and
Imprisonment Act - requires that