The following papers were reviewed by the Court on this motion:
Defendant’s Notice of Motion, Defendant’s Affirmation in Support
with annexed Exhibits A-H, Defendant’s Memorandum of Law, Claimant’s
Memorandum of Law and Defendant’s Reply Affirmation and Claimant’s
filed Verified Claim with Exhibits. Defendant, the State of New York, has
brought this motion pursuant to Civil Practice Law and Rules (CPLR) R 3211
seeking an order dismissing the claim. Claimant, Jean D. Baptichon, a pro
se litigant, has opposed this application.
The underlying claim in this matter concerns alleged wrongdoing by various
individuals in connection with the foreclosure auction sale of a parcel of real
property upon which claimant was a bidder. On July 26, 2005, claimant attended
a foreclosure auction held on the steps of the Nassau County Supreme Court
Courthouse in which he was awarded the winning bid for the property located at
136 Babylon Turnpike, Roosevelt, New York. Claimant mistakenly believed that he
was purchasing the property located at 128 Babylon Turnpike and agreed to the
purchase price of $170,000 for the property. Nevertheless, on that date,
claimant signed a Memorandum of Sale and conveyed a deposit of $17,000 to Diana
Prevete, Esq., the referee for the sale of the property. At some point
thereafter, claimant discovered his error and attempted to rescind the contract
by contacting Roger A. Raimond, Esq., the seller’s attorney. The original
closing date for the sale of the property was scheduled for August 30, 2005 but
was later extended to September 13, 2005. Claimant then received a temporary
stay of the sale which was subsequently lifted by an order rendered by the
Honorable John P. Dunne, J.S.C. on September 29, 2005. In the order, Justice
Dunne determined that the published Notice of Sale correctly described the
property, claimant was fully advised of the situation regarding mailing
addresses and the Memorandum of Sale signed by claimant makes specific reference
to the section, block and lots which comprised the property bring purchased.
Claimant alleges that on October 12, 2005, he served both Mr. Raimond and Ms.
Prevete with a Notice of Intention to Close. On October 13, 2005, Mr. Raimond
sent claimant a letter stating that claimant was in default of the contract.
Apparently, Mr. Raimond then also offered to return a portion of
claimant’s deposit after deducting attorney’s fees. In response,
claimant moved to renew his prior motion however that application was denied by
Justice Dunne on November 29, 2005. A second foreclosure sale was held on
January 3, 2006 during which the property was sold to Island Properties Inc. for
$160,000. Title to the property was transferred on May 26, 2006.
On or about January 10, 2006, claimant commenced an action in Supreme Court,
Queens County, against Diana Prevete for, inter alia, a return of the
$17,000 deposit. Claimant withdrew his summons and complaint in that action on
January 24, 2007. Claimant also filed a related claim in federal court on
January 25, 2007 listing various individuals including the Honorable Tammy S.
Robbins as defendants.
In a separate action in Nassau County Supreme Court, claimant, a non-party
movant, brought a motion seeking an order declaring, among other things, that he
had vested proprietary interest in the property at issue herein. In an order
entered June 21, 2006, Justice Tammy S. Robbins determined that claimant had
defaulted on the July 26, 2005 contract. Justice Robbins continued that
claimant had no legal or equitable interest in the subject property. In the
same action on July 20, 2006, Justice Robbins granted Ms. Prevete’s motion
for, inter alia, an extension of time to file the referee’s
Defendant asserts that the claim must be dismissed since neither the notice of
intention to file a claim nor the claim was served within ninety days of the
date claimant’s action accrued. Claimant states that he timely served a
notice of intention to file a claim upon defendant. He directs the Court to
certified mail, return receipts attached to his motion papers. A review of the
return receipts shows that the notice of intention was received by defendant on
October 11, 2006. Thereafter, the claim was filed with the Clerk of the Court
of Claims on February 5, 2007.
Court of Claims Act § 10(3) provides in relevant part that a claim
“...shall be filed and served upon the attorney general within ninety days
after the accrual of such claim, unless the claimant shall within such time
serve upon the attorney general a written notice of intention to file a
claim...” Court of Claims Act § 11(a) specifies that service upon
defendant is not complete until the notice of intention or the claim is received
by the Office of the Attorney General.
Accordingly, this Court does not have jurisdiction over any of claimant’s
allegations which accrued before July 13, 2006, ninety days prior to October 11,
2006 (Lichtenstein v State of New York, 93 NY2d 911 ).
Consequently, those claims must be dismissed.
The remaining allegations raised by claimant which occurred after July 13, 2006
concern the order of Justice Tammy S. Robbins which was entered on July 20,
2006. Defendant argues that no liability can attach to it based on the actions
taken by Justice Robbins in this case due to judicial immunity.
It is well settled that defendant is entitled to absolute immunity from suit
for those governmental actions involving the exercise of discretion of a
judicial nature (Arteaga v State of New York, 72 NY2d 212 ;
Tarter v State of New York, 68 NY2d 511 ; Tango v Tulevech,
61 NY2d 34 ). After reviewing the claim this Court finds that the
doctrine of judicial immunity applies in regard to the actions taken by Justice
Robbins since they were clearly within the jurisdiction of the judge
(Montesano v State of New York, 11 AD3d 435 [2d Dept 2004]). Thus, this
Court must dismiss the remaining portions of the claim which allege a cause of
action against defendant based on Justice Robbins’ actions.
Therefore, for the foregoing reasons, defendant’s motion is granted and
the claim is dismissed in its entirety.