New York State Court of Claims

New York State Court of Claims

PALMIERI v. THE STATE OF NEW YORK, #2005-030-912, Claim No. 109897, Motion No. M-69326


Case Information

PAUL PALMIERI and THE COALITION OF LANDLORDS, HOMEOWNERS & MERCHANTS, INC. The court has deleted Robert A. Lifson as a defendant since the Court of Claims does not have jurisdiction over individuals.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has deleted Robert A. Lifson as a defendant since the Court of Claims does not have jurisdiction over individuals.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
R. Bertil Peterson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Denis J. McElligott, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 25, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim pursuant to CPLR 3211 on the ground of judicial immunity: Notice of Motion, Affirmation and Exhibits and Memorandum of Law; Claimants' Memorandum of Law; Reply Affirmation

This claim arises from the decision of Supreme Court Justice Robert A. Lifson (Suffolk County), dated September 30, 2003, in Town of Riverhead v Madonna (Index No. 25654-2002) and Madonna v Town of Riverhead (Index No. 27722-2002), specifically an application by the Town of Riverhead to impose sanctions against Bruce R. Madonna, Rosemarie Madonna, and their attorney for allegedly frivolous conduct in that litigation. The court noted in the subject decision:
Some of the court papers indicated that the defendants were represented by the (sic) an entity know (sic) as the Coalition of Landlords, Homeowners, and Merchants, Inc. ("Coalition"). Other court papers indicated that the defendants were represented by the individual attorney employed by such entity. . . . The various Town Attorneys endeavored to establish that the Coalition was acting in violation of Judiciary Law §§ 495 and 496. The central thrust of this analysis is that the Coalition had failed to qualify as a permitted legal association in that the Town could not discover the requisite filing with the Clerk of the Appellate Division. The Coalition asserted that the requisite paperwork envisioned by Judiciary Law § 496 was sent to the Appellate Division.
(Lifson decision, p 4).

The claimants in this action are the Coalition and Paul Palmieri, its founder and principal, who allege, primarily, that they were defamed by Justice Lifson's decision on the application to impose sanctions and by a subsequent decision in those actions.

Judiciary Law §495 regulates the practice of law by corporations and voluntary associations, which is generally prohibited, with certain exceptions. Subdivision (7) provides that the prohibition does not apply to:
organizations which offer prepaid legal services; to non-profit organizations whether incorporated or unincorporated, organized and operating primarily for a purpose other than the provision of legal services and which furnish legal services as an incidental activity in furtherance of their primary purpose; or to organizations which have as their primary purpose the furnishing of legal services to indigent persons.
Section 496 requires annual filings with the relevant appellate division department on behalf of any organization described in section 495(7).

Justice Lifson declined to impose sanctions on the defendants or the attorney who appeared on behalf of the Coalition, but he did impose sanctions on the Coalition pursuant to 22 NYCRR §130-1.3, as well as costs payable to the opposing party. The court then wrote that the testimony at the hearing raised two questions: "(1) was the Coalition authorized to provide legal services for its members in the way the facts indicated services were provided; and (2) if so, was the requisite paperwork timely and properly filed with the Appellate Division?" (Lifson decision, p 11); and the court then stated:
The determinations of these questions are referred to those entities vested with investigatory and enforcement powers to see that compliance with the spirit and the letter of the law is had. Accordingly, a copy of this decision will be forwarded to the District Attorney as well as the Clerk of the Appellate Division in discharge of the court's obligations to report "attorney" misconduct or any illegal activity . . . (citations omitted). Also, a copy of this decision and forwarding letter is also being sent to the Grievance Committee to determine what action, if any, should be taken by against [sic] the Coalition and the various attorneys they presently employ.
(Id., p 12).

The instant claim contains eight causes of action. The first sounds in defamation, with Justice Lifson's September 30, 2003 decision, and a subsequent decision dated February 6, 2004 denying the Coalition's motion for recusal, constituting the allegedly defamatory words. The second ("disparagement of business name and reputation") and third ("injurious falsehood") causes of action are not distinct causes of action but mere repetition of the allegations of defamation. The fourth cause of action ("defendants' abuse of the power of his office and breach of the public trust") is based on claimants' disagreement with the actions and decisions of Justice Lifson during hearings and other proceedings in the underlying civil actions on at least 18 separate dates and additionally contains allegations of criminal conduct. The sixth[1] cause of action seeks damages pursuant to 42 USC §1983 and the seventh seeks attorneys' fees pursuant to 42 USC §1988. The eighth cause of action alleges the intentional infliction of emotional distress and the ninth alleges prima facie tort. On this motion, defendant submits that the claim is barred by the doctrine of judicial immunity.

A number of the causes of action may be disposed of without reference to judicial immunity. The State of New York is not a "person" within the meaning of the federal civil rights statutes, including 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58) and this court, whose jurisdiction is limited to actions against the state and certain state-related entities, has no power to adjudicate claims arising out of such statutes.

With respect to the eighth cause of action, it is well-settled that public policy prevents the assertion of a claim alleging the tort of intentional infliction of emotional distress against the State of New York (Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785).

With respect to the ninth cause of action,
The requisite elements of a cause of action sounding in prima facie tort include (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful (see, Freihofer v Hearst Corp., 65 NY2d 135; Curiano v Suozzi, 63 NY2d 113). Here, the plaintiff failed to allege special damages with the required specificity (see, Freihofer v Hearst Corp., supra; DiSanto v Forsyth, 258 AD2d 497). Additionally, the plaintiff failed to establish that the sole motivation for the institution of the criminal charge was disinterested malevolence (see, EECP Ctr. Am. v Vasomedical, Inc., 265 AD2d 372; see generally, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314).
(Levy v Coates, 286 AD2d 424, 424-425). The claim herein fails to state a cause of action sounding in prima facie tort because no special damages are alleged, because there is no indication of disinterested malevolence and because the allegations allegedly constituting a prima facie tort are the same allegations that form the basis of the other torts alleged in the claim.

Accordingly, the sixth, seventh, eighth and ninth causes of action fail to state a cause of action against the State of New York.

The actions of Justice Lifson at issue herein all arose within the context of his role in deciding motions in two actions that were properly before him as a justice of the Supreme Court in Suffolk County. As this court has recently written in a similar context:
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), 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)
(Mackenzie v State of New York, Ct Cl, Scuccimarra, J., decision and order dated January 21, 2005, UID No. 2005-030-502). The allegedly defamatory statements that form the basis of the various causes of action were made in the course of deciding motions that were duly before the Supreme Court, Suffolk County. Justice Lifson's actions in providing the Appellate Division, the District Attorney and the Grievance Committee with copies of his decision were based on his determinations that the matters that had come before him in adjudicating the motions revealed conduct that might be within the jurisdiction of those bodies to investigate. Contrary to claimants' contentions, judicial immunity is not limited to decisions that are published by the state Official Reporter, nor does Civil Rights Law §74 have anything to do with this case. The only allegations contained in the claim that are not manifestly barred by judicial immunity are the accusations of criminal conduct. Criminal conduct is not part of the judicial function and is not covered by judicial immunity. Unfortunately for claimants' position herein, to the extent that such alleged conduct is not immune because it is beyond the limits of the judicial function, such conduct could not form the basis of State liability because it would be beyond the scope of Justice Lifson's employment by the state. While such alleged conduct could form the basis for a request that the appropriate District Attorney, or the Commission on Judicial Conduct, conduct an investigation, it cannot be the basis for a civil claim for damages against the state. To the extent that claimants disagree with any of Justice Lifson's determinations, they are free to pursue their appeal of his orders, which apparently is being done.

Accordingly, for the reasons stated, defendant's motion is granted and the claim is dismissed for failure to state a cause of action against the State of New York.

March 25, 2005
White Plains, New York

Judge of the Court of Claims

[1]There is no fifth cause of action.