New York State Court of Claims

New York State Court of Claims

LEWIS v. STATE OF NEW YORK, #2006-015-065a, Claim No. 111289, Motion Nos. M-70891, CM-70969


Claim allegedly based upon actions of County Court Judge's Clerk dismissed as untimely since neither act of commission or omission occurred within 90 days of claim's filing and no notice of intention had been served.

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:
Phillip Lewis, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's cross-motion to dismiss the claim for lack of jurisdiction on the basis that the claim was untimely served is granted. Dismissal of the claim renders academic claimant's motion to strike certain affirmative defenses set forth in the answer. Although the facts underlying the claim are difficult to decipher it appears the claimant seeks to assert a cause of action for intentional tort (intentional infliction of emotional distress) allegedly perpetrated by Albany County Court Judge Stephen W. Herrick, the judge's clerk and the Albany County District Attorney.

The claim alleges that following sentencing by Albany County Court Judge Stephen W. Herrick the claimant attempted to obtain re-sentencing through the submission of a motion pursuant to Criminal Procedure Law § 440.20. An unsigned copy of a motion decision bearing a generic date of May 2004 was allegedly supplied to claimant under cover of correspondence dated October 18, 2004 and signed by Cathy O'Neill who the claimant alleges is Judge Herrick's clerk although her job title does not appear on the letter (see claimant's Exhibit B-2). Claimant asserts that the unsigned decision and order contains material and fraudulent misrepresentations of fact and that its issuance deprived him of procedural due process and caused emotional pain. The claim does not specify under which constitution (Federal or New York State) the alleged denial of due process is asserted.

Claimant has moved to strike five affirmative defenses contained in the defendant's answer. The defendant opposed the motion and cross–moved to dismiss the claim as untimely under Court of Claims Act § § 10 (3) and 11. This defense was preserved with particularity in paragraph "Fourth" of the defendant's answer which provides:
FOURTH: That this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim, as required by Sections 10 (3) and 11 of the Court of Claims Act.

The claim filed August 25, 2005 states that it accrued on June 10, 2005 when "claimant received notice that all the above had transpired along with 3 page addendum." On the motion claimant submitted a photocopy of a letter dated June 7, 2005 from an attorney (Charles J. Keegan) to Roger Fritts at the Appellate Division, Third Department in Albany (Exhibits B and B-1) which explains the author's frustrated attempts to obtain paperwork related to claimant's CPL 440.20 motion.

In Welch v State of New York (286 AD2d 496) the Appellate Division, Second Department observed at pp 497 - 498:
Pursuant to Court of Claims Act § 10, '[n]o judgment shall be granted in favor of any claimant' for personal injuries due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney General within two years after the accrual of the claim (see, Conner v State of New York, 268 AD2d 706; Coleman v Webb, 158 AD2d 500). As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see, Alston v State of New York, 281 AD2d 741; Crair v Brookdale Hosp. Med. Ctr., 259 AD2d 586, affd 94 NY2d 524; Phillips v State of New York, 237 AD2d 590; Voulgarelis v State of New York, 211 AD2d 675).

A thorough examination of the claim fails to reveal any activity by an employee of the defendant which occurred within 90 days prior to the filing and service of the claim on August 25, 2005. In fact, the last date of any activity even suggestive of such action is October 18, 2004, the date on which Judge Herrick's unsigned decision was mailed (see claimant's Exhibit B-2). Service and filing of a claim accruing on October 18, 2004 and sounding in either negligence or intentional tort would have had to occur no later than January 16, 2005. As a result, the Court concludes that service and filing of the claim on August 25, 2005 was accomplished more than 90 days following its accrual. The claim is therefore untimely and must, accordingly, be dismissed.

The claim is subject to dismissal on additional grounds. First, claimant has characterized the instant action as one for intentional tort (intentional infliction of emotional distress). New York law does not recognize a cause of action for intentional infliction of emotional distress against the State (see Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). Secondly, as argued by the defendant on its cross-motion, it is well settled that the State "may not be held liable for the actions of a state- employed judge where, as here, those actions are cloaked with judicial immunity (see Swain v State of New York, 294 AD2d 956; Weiner v State of New York, 273 AD2d 95, 97; Welch v State of New York, 203 AD2d 80, 81; Harley v State of New York, 186 AD2d 324;  Word v City of Mount Vernon, 65 AD2d 622)" (Montesano v State of New York, 11 AD3d 436). "The rule [of judicial immunity] which exempts Judges of courts of record from liability for all acts done in the exercise of a judicial function is deeply rooted in the common law (Murray v Brancato, 290 NY 52, 55 citing Yates v Lansing, 5 Johns 282, 291; and Bradley v Fisher, 13 Wall [80 US] 335, 351)" (Lombardoni v Boccaccio, 121 AD2d 828). "Judges have absolute immunity from suit for judicial acts performed in their judicial capacities. Mireles v Waco, 502 US 9, 12; see also Oliva v Heller, 839 F2d 37 (2d Cir 1988). This absolute judicial immunity is not overcome by allegations of bad faith or malice, nor can a judge 'be deprived of immunity because the action he took was in error . . . or was in excess of his authority' (Mireles, 502 US at 13)" (Wood v Incorporated Village of Patchogue, 311 F Supp. 2d 344). There are but two exceptions to the rule of judicial immunity, the first is where the judge is not acting as a judge and the second where the judge though acting under color of judicial authority lacks any jurisdiction to support the action taken (see Alvarez v Snyder, 264 AD2d 27, 31; Mireles, supra).

The doctrine of judicial immunity applies not only to judges themselves but has also been extended to non-judicial personnel. In Weiner v State of New York, 273 AD2d 95, the Appellate Division, First Department held:
[J]udicial 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' " (see, Sindram v. Suda, 986 F.2d 1459, 1460 [D.C. Cir. 1993], citing Mullis v. United States Bankruptcy Court, District of Nevada, 828 F. 2d 1385, 1390 (9th Cir. 1987], appeal dismissed, cert. denied 486 U.S. 1040, 108 S. Ct. 2031, 100 L.Ed.2d 616; Foster v. Walsh, 864 F.2d 416, 417 [6th Cir. 1988]; Dellenbach v. Letsinger, 889 F.2d 755, 763 [7th Cir. 1989], cert. denied 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950; Rodriguez v. Weprin, 116 F.3d 62 [2d Cir. 1997]). As the Seventh Circuit Court of Appeals aptly noted, it is necessary to extend judicial immunity to non-judicial court personnel performing their prescribed functions, in order to avoid" [t]he danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts" (Scruggs v. Moellering, 7th Cir., 870 F.2d 376, 377, cert. denied 493 U.S. 956, 110 S.Ct. 371, 107 L.Ed.2d 357).

The actions of a court clerk and other non-specified court personnel were deemed to be "quasi-judicial in nature and thus also cloaked with judicial immunity" in Welch v State of New York, 203 AD2d 80.

Additionally, the claim alleged that the District Attorney was complicit with the Judge and his clerk in denying claimant proper consideration of his CPL 440.20 motion. It is settled that a District Attorney "is elected and compensated by the county's voters and enjoys no extra-county jurisdiction (Fisher v State of New York, 10 NY2d 60) as a result of which a District Attorney's torts are the torts of the county rather than of the State (id; Claude H. v County of Oneida, 214 AD2d 964; Morris v City of New York, 198 AD2d 35; Whitmore v State of New York, 55 AD2d 745, lv denied 42 NY2d 810; Fonfa v State of New York, 88 Misc 2d 343)" (Ramos v City of New York, 285 AD2d 284, 303). The District Attorney is a county employee not a state employee and it is established that this Court is "without authority to hear claims against a county or any individual county employee" (Guarneri v State of New York, Ct Cl, June 17, 2002 [Claim No. 105608, Motion No. M-65210] Lebous, J., unreported).

Finally, while purportedly asserting a constitutional tort claim for denial of procedural due process claimant failed to allege whether such denial occurred under the U.S. Constitution which this Court has no jurisdiction to consider, or under the New York State Constitution (Brown v State of New York, 89 NY2d 172). More importantly, the claim does not allege facts tending to support a constitutional tort claim under the State Constitution. In instances where a common law cause of action is available to redress the same injuries alleged in the constitutional claim, no useful purpose is served by implying a remedy under the constitution (Bullard v State of New York, 307 AD2d 676, 678; Martinez v City of Schenectady, 97 NY2d 78; Remley v State of New York, 174 Misc 2d 523). The existence of a recognized common law remedy provides an adequate alternate remedy for redress of the alleged wrong (Martinez v City of Schenectady, supra; Augat v State of New York, 244 AD2d 835). Here claimant could have pursued the issue of Judge Herrick's delay in processing his CPL 440.20 motion in an article 78 proceeding in the nature of mandamus (see Walker v Angiolillo, 215 AD2d 567). The availability of such a remedy precludes consideration of a claim for constitutional tort under these circumstances (Bullard v State of New York, 307 AD2d 676, supra).

Defendant's motion to dismiss the instant claim is granted and claimant's motion to strike various affirmative defenses set forth in the answer is denied.

March 2, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 26, 2005;
  2. Undated, unsigned, unsworn affidavit of Phillip Lewis with exhibits;
  3. Notice of cross-motion dated December 7, 2005;
  4. Affirmation of Belinda A. Wagner dated November 21, 2005 with exhibit;
  5. Reply of Phillip Lewis sworn to November 28, 2005.