Claimant’s Response to Cross-Motion 4
Filed Papers: Claim.
According to the affirmation submitted by defendant’s attorney (see Item
3), claimant apparently was convicted of attempted murder and other crimes in
Onondaga County Court in 1995, in which the trial judge was Judge Cunningham.
These convictions were then confirmed on appeal (People v Bernard Peters,
249 AD2d 987).
Claimant bases his claim against Judge Tormey, who is the Administrative Judge
for the Fifth Judicial District, on allegations of “Fraud, Conspiracy, and
Impermissible Misapplication of the Statue/Law (sic) that had occurred on August
28, 1995 in the Court that he is in charge of.” In addition, claimant has
also included documents with his claim, including a UCC financing statement and
a “notice of final default judgement” addressed to Judge Tormey, by
which claimant considers himself an “account creditor”, Judge Tormey
is identified as an “account debtor”, and claims that Judge Tormey
owes claimant damages in the amount of $5,475,000,000.00.
In addition to this claim for monetary damages from Judge Tormey based upon an
unsigned UCC financing statement, claimant, in his motion, also requests that
this Court “immediately discharge my property, i.e. my body, currently
being held hostage at the Elmira Correctional Facility”.
Initially, it is well settled that the jurisdiction of the Court of Claims is
limited to those claims seeking money damages against the State of New York
(Matter of Gross v Perales, 72 NY2d 231; Matter of Silverman v
Comptroller of the State of New York, 40 AD2d 225). The Court of Claims has
no jurisdiction to grant equitable relief (Psaty v Duryea, 306 NY 413),
and therefore claimant’s request that this Court immediately
“discharge” him from custody at Elmira Correctional Facility, which
is viewed by this Court as an application for habeas corpus relief, is
beyond the jurisdiction of this Court (CPLR § 7002[b]).
Furthermore, the subject matter jurisdiction of the Court of Claims is limited
by statute, and the Court only has jurisdiction over the State of New York, and
not individual employees of the State.
this particular matter, claimant has pursued this claim against Judge Tormey
individually, based upon certain unsigned documents in which claimant alleges
that Judge Tormey is in “default” on a debt. This Court, therefore,
lacks subject matter jurisdiction to entertain and hear such a claim.
Additionally, should claimant contend that the State is liable for any actions
taken by Judge Tormey with respect to claimant, it is well settled that judges
in this State are absolutely immune from civil liability for their judicial
acts, and the State is not liable for alleged errors made by a judicial officer
in the performance of his or her duties (Murray v Brancato, 290 NY 52;
Lombardoni v Boccaccio, 121 AD2d 828). This doctrine of judicial
immunity is extremely broad, and extends to virtually all actions taken and
decisions made in the performance of one’s judicial functions.
Finally, defendant contends that this claim is untimely, in that neither a
claim nor a notice of intention was served upon the Attorney General within 90
days of accrual of the claim, as required by Court of Claims Act § 10(3).
In this claim, claimant alleges that this claim accrued on July 12, 2006, based
upon the “Fraud, Conspiracy, and Impermissible Misapplication of the
Statue/Law” (sic) which allegedly occurred on August 28, 1995. Although
this Court is unable to discern why July 12, 2006 is alleged as the date of
accrual, documentation establishes that this claim was served upon the Attorney
General on April 21, 2008, and was filed with the Clerk of the Court of Claims
on April 24, 2008. There is no evidence submitted herein to suggest that a
notice of intention was ever served upon the Attorney General.
Accordingly, whether the Court accepts the date of accrual alleged by claimant
(July 12, 2006), or the date on which the alleged conduct occurred (August 28,
1995), it is readily apparent that this claim was not served or filed within 90
days of accrual as required by Court of Claims Act § 10(3).
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State and therefore they must be strictly construed (Finnerty v
New York State Thruway Auth., 75 NY2d 721; Lepkowski v State of New
York, 1 NY3d 201). Therefore, this Court may not cure or overlook defects
in the time and/or manner of service and filing. Since this claim was not
timely filed, and since defendant properly raised this jurisdictional defect in
its pre-answer cross-motion (as required by Court of Claims Act § 11[c]),
the claim is jurisdictionally defective and must be dismissed.
Therefore, for all of the foregoing reasons, this claim must be dismissed.
Accordingly, claimant’s motion for summary judgment has been rendered
moot and is hereby denied.
It is therefore
ORDERED, that Motion No. M-74925 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-75039 is hereby GRANTED; and it is
ORDERED, that Claim No. 115165 is hereby DISMISSED.