New York State Court of Claims

New York State Court of Claims

BAPTICHON v. THE STATE OF NEW YORK, #2007-045-010, Claim No. 113294, Motion No. M-73039


defendant’s motion to dismiss claim, untimely filed, judicial immunity.

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:
Jean D. Baptichon, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Patricia M. Hingerton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 report.

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 [1999]). 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 [1988]; Tarter v State of New York, 68 NY2d 511 [1986]; Tango v Tulevech, 61 NY2d 34 [1983]). 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.

June 14, 2007
Hauppauge, New York

Judge of the Court of Claims