This matter comes before the court on defendants’ pre-answer motion to
dismiss the claim herein, pursuant to CPLR Rule 3211 (a) (7), for failure to
state a cause of action.
Defendants contend that the individuals named as defendants, to wit: Judge
Romano and Judge Cook, are not proper defendants in the Court of Claims.
Furthermore, the defense argues that, as a result of judicial immunity, the
State, as the remaining defendant, cannot be held liable for the acts of these
Claimant, in a meandering claim, seeks both compensatory and punitive damages
for rulings adverse to him, made by Oneida County Supreme Court Justice Romano,
and Acting Supreme Court Justice Cook (both in his role as an Acting Supreme
Court Justice and thereafter, following his retirement, as a Judicial Hearing
Officer assigned to the matter) in a Supreme Court action apparently arising
out of the dissolution of claimant’s
The claims are voluminous, but
distilled to their essence, allege that Judges Romano and Cook did not treat the
parties equally, failed to afford sufficient time to claimant to present his
case, and in their demeanor and rulings effectively violated assorted
constitutional rights of the claimant.
The law is well settled that:
[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a
liberal construction (see, CPLR 3026). We accept the facts as alleged in
the complaint as true, accord [claimant] the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit within any
cognizable legal theory [citations omitted]. . . . In assessing a motion under
CPLR 3211 (a) (7) . . . ‘the criterion is whether the proponent of the
pleading has a cause of action, not whether he has stated one’ [citations
Leon v Martinez
, 84 NY2d 83, 87-88.
While the claim lacks precise details of the alleged acts of wrongdoing, the
court will assume for the purposes of this motion that the specific factual
allegations of the claim are true. Nevertheless, the claim fails to state a
cause of action actionable in this court.
This court has authority to act only in those limited circumstances in which
the legislature of the State of New York has chosen to waive sovereign immunity
(see e.g. Court of Claims Act § 8, et seq.). Thus, this
claim must be viewed in the light of this court’s circumscribed authority
At the outset, the claim must be dismissed as against Frank Cook and Bernadette
Romano, the individuals named as defendants. Individuals cannot be sued in the
Court of Claims (Court of Claims Act § 9; Griffen v State of New
York, UID No. 2006-030-585, Claim No. None, Motion No. M-72280; Davey v
State of New York, UID No. 2005-029-503, Claim No. 110503, Motion No.
While this claim also seeks punitive damages, the State of New York is not
subject to punitive damages (Sharapata v Town of Islip, 56 NY2d 332, 334
; Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]).
Insofar as claimant seeks punitive damages, that portion of the claim is
Furthermore, the State itself cannot be held liable for the acts of employees
for their judicial acts. As the Court explained in Mitchell v State of New
York, UID No. 2005-015-025, Claim No. 110085, Motion Nos. M-69741, M-69742,
. . . 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 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,
This judicial immunity extends not only to the judges themselves, but to those
who act in a quasi-judicial capacity (Welch v State of New York, 203 AD2d
80; Swain v State of New York, 294 AD2d 956, 957). Thus, Judge Cook,
even when acting as a judicial hearing officer, would be afforded the protective
There are no factual allegations by the claimant that named defendants were
acting as other than judges or judicial hearing officer, or that their courts
lacked jurisdiction to hear the matters which underlie this claim. As a result,
since the acts of the individuals are protected by immunity, so too is the State
afforded that immunity. And, as noted above, even if the acts of these judicial
officers were colored by a prejudice against this claimant, or were undertaken
with malice, immunity would nonetheless apply. Therefore, the entire claim
against the defendants must be dismissed.
Even assuming arguendo that there were valid federal constitutional claims
against the defendants not protected by judicial immunity, the Court of Claims
is not the proper forum for such claims. This court has no jurisdiction to
consider claims under the U.S. Constitution (Brown v State of New York,
89 NY2d 172, 185; Griffen v State of New York, UID No. 2006-030-585,
Claim No. None, Motion No. M-72280).
Assuming that there could be a valid state constitutional claim, such claims
are tightly circumscribed, and would not be proper in this forum in this factual
context. As the court noted in Griffen v State of New York (UID No.
2006-030-585, Claim No. None, Motion No. M-72280):
[i]n New York, constitutional provisions are presumptively self-executing.
Brown v State of New York, supra at 186. Violation of every
self-executing provision will not always support a claim for damages however.
Only where it is necessary to ensure the effectiveness and promote the purposes
of the allegedly violated provision will a constitutional tort remedy be
implied. Brown v State of New York, supra at 191.