New York State Court of Claims

New York State Court of Claims

BRADY v. THE STATE OF NEW YORK; Governor Eliot Spitzer, Chief Judge Judith S. Kaye, Attorney General Andrew Cuomo, #2007-028-559, Claim No. NONE, Motion Nos. M-72812, M-72976, CM-72927


Movant, who must obtain Court permission in order to commence an action, failed to establish that his proposed claim has any legal merit, as the actions complained – the issuance of a number of decisions by several courts in this State - are protected by absolute immunity.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK; Governor Eliot Spitzer, Chief Judge Judith S. Kaye, Attorney General Andrew Cuomo
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72812, M-72976
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
BY: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant’s motion for permission to file a “Pro Se Claim for Continuing Injuries” (Motion No. M-72812) and Movant’s Motion for Judgment by Default (Motion No. CM-72927), and Movant’s motion for recusal (Motion No. M-72976).

1. “Notice of Pro Se Claim for Continuing Injuries” of Kevin Patrick Brady, pro se, with annexed Exhibits (28 pages) and related correspondence (4 pages);

2. Affirmation in Opposition of James L. Gelormini, AAG, (6 pages) with 5 annexed Exhibits (71 pages total) and Memorandum of Law (3 pages);

3. Movant’s Reply Affidavit and Notice of Cross-Motion with Supporting Affidavit of Kevin Patrick Brady, pro se (34 pages), with annexed Exhibits (97 pages total); and

4. Motion for Recusal of Kevin Patrick Brady (12 pages)

Movant, appearing pro se, has filed with the Court of Claims a “Notice of Pro Se Claim for Continuing Injuries.” It is evident that Movant intended this document to be accepted as a Claim, for it was accompanied by a letter stating that he would like a $50.00 credit that he had with the Court to be applied to pay the filing fee. Rather than accepting the document as a Claim, however, the Chief Clerk notified Movant that his submission would be accepted as a motion for permission to file a claim. The reasons for this course of action are discussed below.

The document in question demands damages in an amount said to be greater than $1,000,000.00, also said to be growing by more than $10,000.00 per month, for the alleged “failures of state court officers and attorneys general to act on Claimants assertions of rights. . .” Although it is difficult to discern from the document the specific occurrences and transactions that are alleged to have given rise to the asserted cause(s) of action, it appears that Movant is protesting a series of actions taken by a number of State government officials and decisions issued by various Courts, all of which he asserts constitute a “long stream of judicial malevolence and nonfeasance” (“Pro Se Claim,” p 3). Specifically mentioned in the document are this Court’s recent decision denying Movant permission to file a different, although related, claim and 31separate actions or proceedings in other courts, contained on a list that bears the designation “Legacy of Constitutional Malfeasance and Judicial Nonfeasance” (“Pro Se Claim,” p 19). Although it is expressed in many different ways, Movant is seeking money damages because of the effect that certain prosecutions and judicial rulings have had on his life.

The confusion over whether Movant’s submission should be considered a Claim or a proposed Claim that is submitted for the Court’s permission to file arises from a sequence of events started when, in connection with a custody and support proceeding relating to Movant’s child, an Order was issued by a Monroe County Family Court establishing certain visitation rights and support obligations. Movant’s dissatisfaction with the terms of this Order have led to numerous lawsuits and proceedings in both State and Federal courts. In Federal Court, Movant was eventually restrained from commencing any action relating to the Family Court proceedings without first obtaining permission from the District Judge.[1]

In New York State Supreme Court, in a Judgment, Order and Permanent Injunction filed March 5, 1996 (Gelormini Affirmation, Exhibit 3), Justice Jerome C. Gorski imposed monetary sanctions totalling $10,177 (comprised of a $2,500 sanction, payable to the Office of Court Administration within 30 days of entry of the Judgment and Order, and amounts representing reasonable attorney fees and costs incurred “in defense of plaintiff’s frivolous action and conduct,” payable within the same time period to the Attorney General and two private law firms) and enjoined Movant from
bringing or filing any other lawsuits or petition in any Court (State or Federal) based on the Family Court matter (or any of its outgrowth, i..e., lawsuits against lawyers, judges, court staff, et al., who has become in any way involved in that Family Court dispute or its progeny) without prior permission to do so from the Presiding or Supervising Judge of that Court or that Judge’s designee. . .
When none of the monetary sanctions imposed by Justice Gorski were paid, the Attorney General moved to punish Movant for criminal and civil contempt.

Following a series of hearings held in the spring and summer of 2003, Supreme Court Justice Thomas M. Van Strydonck found Movant guilty of criminal contempt (Judiciary Law § 750) and civil contempt (Judiciary Law § 753) and imposed the following punishments:
  1. on the finding of criminal contempt, a $1,000.00 fine and 30 days incarceration in the Monroe County Jail;
  1. on the finding of civil contempt, 60 days incarceration, with the alternative to purge this sentence by payment of the sums levied by Justice Gorski;
  1. continuation of the restrictions placed by Justice Gorski on Movant’s right to commence lawsuits or proceedings without the permission of the appropriate Supervising Judge; and
  1. an additional restriction prohibiting Movant from commencing any lawsuit in the State of New York unless he is represented by an attorney.

Consequently, when Movant has sought to commence an action in the Court of Claims, the Chief Clerk of this Court complied with the directives of both Justice Gorski and Justice Van Strydonck by submitting the matter to the Presiding Judge of this Court to determine if the Claim should be filed.

Movant contends that by not allowing him to file claims directly, he is being arbitrarily deprived of meaningful access to the courts. This Court disagrees. It is well within the power of the courts to require certain litigants, those who bring an excessive number of frivolous claims (or other proceedings), to obtain express permission of the Presiding Judge (or his designee) before being allowed to institute additional actions or proceedings (see Jackson v Deer Park Ventures, 9 Misc 3d 1123(A) [2005] and cases cited therein). In this Court, it has been recognized that permission must be granted if the litigant establishes that the proposed claim is based on allegations “leading to a conclusion” that the State was at fault (Lee v State of New York, Claim No. 92855, March 19, 1996, Mega, P.J.; see also Lee v State of New York, Claim No. 79553, Motion No. M-41426, December 7, 1990, Corbett, P.J.). Thus, as long as Movant drafts a claim based on factual allegations that could lead to the conclusion that the State was at fault and liable to Movant for money damages, his right to commence an action in this Court is not hampered in any way. All he has lost is the right to commence as many frivolous and/or patently non-meritorious claims as he wishes. This does not place him at a disadvantage, however, for any frivolous or patently non-meritorious claim would be subject to almost immediate dismissal as soon as it was filed.[2] In light of Movant’s history of repetitive, excessive and frivolous litigation in many courts, and the number of applications and motions that he has recently made in this Court, placing a reasonable restriction on his ability to freely initiate additional litigation is entirely appropriate here. Consequently, Movant’s motion to have this Court recuse itself from consideration for failure to properly consider his submissions to be claims, rather than motions for permission to file claims (Motion No. M-72976) will be denied.

In response to an earlier application to file a claim, this Court denied permission on the ground that the proposed claim is meritless on its face (Brady v State of New York, et al., UID #2006-028-586, Claim No. NONE, Motion No. M-71491 [Ct Cl Oct. 4, 2006], Sise, P.J.). As is the case with the instant submission, that proposed claim challenged the legality of prosecutions against Movant and rulings made by a number of different courts. The instant application must fail for the same reasons given in the earlier decision:
[T]he actions of judicial officers in carrying out their judicial function are entitled to absolute immunity from liability (Salzano v Town of Poughkeepsie, 300 AD2d 716 [2002]; Bardascini v Reedy, 51 AD2d 271, 272 [3d Dept 1976], lv denied 40 NY2d 803 [1976]). In addition, actions performed by the prosecutor which are associated with the prosecutorial phase of the criminal process are deemed quasi-judicial in nature and invoke the doctrine of absolute immunity to bar civil liability for such action, even if it should appear that the actions were done maliciously (Lau v Cooke, 282 AD2d 887, 888 [3d Dept 2001]); Schanbarger v Kellogg, 35 AD2d 902 [3d Dept 1970], app dsmd 29 NY2d 649 [1971], cert den 405 US 919 [1972]). This immunity precludes any claim of negligence.
The Court rejects Movant’s contention that he is not challenging judicial decisions. This argument is based on Movant’s opinion that the rulings of which he complains were not made “after consideration of the facts and the law” (Brady Reply Affidavit and Notice of Cross Motion, p 3). Whatever his view may be, however, the rulings that he contends have caused him harm were made in the course of legitimate actions or proceedings and were issued by the appropriate judicial officers. Consequently, their issuance is cloaked in absolute judicial immunity.

Because the “Pro Se Claim for Continuing Injuries” that Movant seeks to file as a claim in this Court is entirely lacking in merit, the motion for permission to file is DENIED and the motion for judgment by default is DENIED as moot. [3] As noted above, Movant’s motion for recusal is also DENIED.

July 16, 2007
Albany, New York
Judge of the Court of Claims

[1]. Movant’s efforts to obtain relief in the Federal courts are outlined in the following decisions: Brady v Marks, 7 F Supp 2d 247 (WDNY 1998); Brady v Irizarry, 2006 WL 1389754 (WDNY 2006).
[2]. Indeed, one could argue that Movant has been placed at an advantage when compared to other litigants who must file and serve a claim and pay the Court’s $50 filing fee in order to commence an action, and that fee may not be recovered even if the action is subject to immediate dismissal on a motion to dismiss for lack of legal merit. Movant, however, is able to have the underlying merit of any claim evaluated prior to actually filing and having to pay the fee.

[3]. It is anticipated that Movant will seek to appeal this ruling, as he has done with all or almost all previous decisions affecting him. In order to avoid the difficulties he encountered in compiling the record on appeal of this Court’s earlier motion decision (see Brady v State of New York, UID #2007-028-543, Claim No. NONE, Motion No. M-72717 [Ct Cl April 3, 2007], Sise, P.J.), documents considered by the Court here have been listed along with an indication of their exact length.