New York State Court of Claims

New York State Court of Claims

HENNESSY v. STATE OF NEW YORK, #2008-015-504, Claim No. 112277


Following a trial on the issue of liability, claim for false imprisonment and negligence was dismissed. Bench warrant for claimant's arrest was valid on its face and confinement was therefore privileged. Additionally, Judge's alleged negligence in issuing the warrant was immune from liability. Even if conduct complained of was performed by Court personnel it was integral part of the judicial process and deserving of 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:
Friedman, Hirschen & Miller, LLPBy: Carolyn B. George, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


This claim proceeded to trial on the issue of liability on February 19, 2008. Claimant Colin Hennessy alleges that the defendant was negligent in failing to notify him of a scheduled court appearance regarding a criminal matter in Albany City Court on December 1, 2005. As the result of the claimant’s failure to appear in court, a bench warrant was issued and the claimant was arrested on February 9, 2006 and confined until his release on February 10, 2006.

Claimant was 21 years of age at the time of trial. He testified that he was arrested in September 2005 and charged with felony robbery and assault. He retained Michael Magguilli, Esq. as his criminal defense attorney and entered a plea of not guilty. The witness testified that each time a future court appearance was scheduled he was notified of the date by either the Judge or Mr. Magguilli.

On February 9, 2006 the claimant was in a motor vehicle accident while driving his father’s car on Madison Avenue in Albany, New York. According to the claimant’s testimony, the vehicle he was driving was struck by another vehicle which thereafter left the scene of the accident. He drove approximately one mile to Sage College where his girlfriend resided. While he was at his girlfriend's dormitory room, two police officers and a public safety officer from the college arrived. After speaking to the officers for approximately twenty minutes the claimant was initially told that he was free to leave. Instead, at approximately 11:30 p.m. on February 9, 2006 he was arrested on a bench warrant issued upon his failure to appear in Court. The claimant was released from custody on February 10, 2006 at approximately 10:00 a.m. He testified that the felony charges arising from the September 2005 arrest were ultimately reduced to a violation.

Claimant testified that he was not aware that he had missed a court appearance. He testified that every time he went to court in relation to the criminal charges pending against him he was given a card with the date of the next scheduled appearance indicated thereon and that he considered court appearances “very important”.

On cross-examination the claimant testified that after the motor vehicle accident, which occurred at approximately 9:00 p.m., he drove to Washington Park and inspected his vehicle. He then went to Sage College on New Scotland Avenue in Albany. The police arrived at his girlfriend's dormitory room between 10:30 and 11:00 p.m. Although the claimant testified that the other vehicle involved in the accident had left the scene, he never called police to report the accident.

Rachel Barkley, the claimant’s girlfriend, was next called to testify. Ms. Barkley testified that she currently attends the State University of New York at Albany. She resided at Sage College in Albany and had been dating the claimant for approximately two years at the time of his arrest in February 2006. Ms. Barkley testified that the claimant arrived at her dormitory on the evening of February 9, 2006. Approximately one hour later the police and campus security arrived and questioned claimant concerning his possible involvement in an earlier automobile accident. The officers took the claimant outside and when Ms. Barkley exited the building approximately ten minutes later she observed the claimant being taken away by the police in handcuffs.

Daniel Hennessy, the claimant’s father, was called to testify as the claimant's next witness. Mr. Hennessy testified that in the Fall of 2005 the claimant resided with him and his wife in Defreestville, New York. Mr. Hennessy testified that he attended all court appearances with his son and Mr. Magguilli, his son’s lawyer. According to Mr. Hennessy his son was notified of future court dates by the receipt of a card given to him by a Court Clerk with the date and time of the next appearance indicated thereon. He testified that such notification was never received by mail. According to the witness, his son’s last court appearance was in September or October 2005. Sometime in the Fall of 2005 the witness called Mr. Magguilli to inquire as to the status of his son’s case because it seemed to be languishing. As of February 2006 he did not know the date of the claimant's next scheduled court appearance.

Mr. Hennessy went to the police station following his son’s arrest on February 9, 2006. There he was advised that his son had been involved in an automobile accident and was arrested on a bench warrant relating to a missed court appearance. The witness was unaware that his son had missed a court appearance. With the assistance of Mr. Magguilli, the claimant was released to his father's custody at approximately 10:00 a.m. on February 10, 2006.

Michael Magguilli, Esq. was the claimant’s next witness. Mr. Magguilli testified that he was admitted to the New York State Bar in January of 1982. He is currently employed as the Town Attorney for the Town of Colonie, New York and was previously engaged in the private practice of law. Mr. Magguilli also served as a part-time public defender in Albany County, New York. In the Fall of 2005 he was retained by claimant with regard to serious criminal charges brought against him and appeared in Albany City Court on his behalf on September 28, 2005 and October 12, 2005, at which time the matter was given a “control date” of December 1, 2005. Mr. Magguilli testified that he requested a control date instead of an adjournment because the District Attorneys’ office had not yet decided whether the matter would be transferred to County Court for a potential felony indictment. The witness testified that no appearance was required on a control date. Mr. Magguilli first learned that a bench warrant had been issued for the claimant when he received a telephone call from the claimant’s father in February 2006. He appeared in court on behalf of the claimant and secured his release from police custody.

The witness testified that sometime after December 2005 the felony charges then pending against the claimant were reduced to a misdemeanor. A Prosecutor’s Information received in evidence (Exhibit 14) reflects that the claimant was formally charged with assault in the third degree (Penal Law, § 120.00 [1]), a class A misdemeanor, on December 13, 2005. According to Mr. Magguilli, under these circumstances it is customary for the court or the District Attorneys’ Office to contact a criminal defendant in order to advise him that the case will remain in Albany City Court (Police Court) and set a new appearance date.

Mr. Magguilli reviewed Exhibit 10, a transcript of the proceedings in Albany City Court on February 10, 2006, and testified that the transcript was in error to the extent it indicates he stated “Last we heard [the case] was set down on calendar for review” (see Exhibit 10, p. 2). Rather, Mr. Magguilli testified that he actually said “Last we heard [the case] was sent down to County for review”. Notably, this appears to be consistent with Mr. Magguilli’s next statement on the record for February 10, 2006:
"The last District Attorney I spoke to, it was our impression the case was still in County Court being reviewed. We were never notified it was sent to this Court. I understand there is a warrant and ask the Court to release my client” (Exhibit 10, p. 2)."
Mr. Magguilli explained that Police Court is loud and the statements are recorded electronically.

On cross-examination Mr. Magguilli testified that he has a specific recollection that on February 10, 2006 he advised the presiding judge that the case was “sent down to County for review”. He testified that the transcript received as Exhibit 10 is incorrect in relating that the case was "set down on calendar for review". He asked for a control date rather than an adjournment because, according to Mr. Magguilli, a control date avoids the necessity of a court appearance where a case is still under review for indictment by a grand jury. Mr. Magguilli acknowledged that the term “control date” is not a defined term, but a matter of common usage in Police Court where he has practiced for twenty years. He testified that although the court generally telephones counsel before issuing a bench warrant, no one called him regarding the issuance of the bench warrant for the claimant’s arrest on December 1, 2005.

On redirect examination Mr. Magguilli testified that a control date is set to allow time for a determination regarding whether or not the case would be presented to a grand jury for indictment on felony charges or whether the criminal defendant would be charged with a misdemeanor. Mr. Magguilli explained that jurisdiction in the City Court is limited to misdemeanors and that felonies are handled in the County Court. According to Mr. Magguilli as of December 1, 2005, the date the bench warrant was issued, the charges against the claimant remained felonies. A Prosecutor's Information charging the claimant with assault in the third degree - a misdemeanor - was served on December 13, 2005 (Exhibit 14).

Janice Cellucci was the claimant’s last witness. Ms. Cellucci testified that she is the Chief Clerk in the Albany City Court, Criminal Part, and appeared pursuant to a subpoena duces tecum issued to the Albany City Court. She testified that Exhibit 16 is the Albany City Court calendar for December 1, 2005. The document reflects that the criminal matter involving the claimant was listed as number 16 on the calendar. She testified that she reviewed court records in response to the subpoena and the records did not contain correspondence to either the claimant or Mr. Magguilli regarding a scheduled court appearance on December 1, 2005.

This concluded the claimant’s case in chief.

The defendant called the Honorable William Carter to testify on its behalf. Judge Carter testified that he is an Albany City Court Judge in the criminal part. Judge Carter testified that according to Exhibit 6, a copy of the Albany City Court file, the claimant’s criminal case was adjourned on September 28, 2005 and again on October 12, 2005. The matter next appeared on the calendar on December 1, 2005 which Judge Carter described as "an appearance date" scheduled at the request of the defendant (claimant herein) and without the consent of the District Attorney's Office. The witness testified that the court file further reflects that the defendant failed to appear in court on December 1, 2005 and a bench warrant was issued for his arrest. Judge Carter stated that he is familiar with the term "control date" and that both parties were required to appear in Albany City Court on December 1, 2005.

On cross-examination Judge Carter testified that a calendar is generated for each court date and that the name of each defendant scheduled to appear should appear on the calendar although this is not always the case. Upon review of the transcript of the proceedings for October 12, 2005 (Exhibit 8) the witness testified that although defense counsel requested a control date of December 1, 2005 the record does not reflect the consent of the District Attorney. Where the District Attorney stands silent, as was the case on October 12, 2005 involving Mr. Hennessy, consent to the request for a control date is not assumed. According to Judge Carter:
"The Control date . . . is a felony control date that the attorney asks for in the hopes that the District Attorney will make a motion to the Court to reduce the felony to a misdemeanor. All parties have to be present for that."
The witness testified that as is noted with regard to other entries contained in Exhibit 6, the defendant (claimant) was required to appear except where his attendance was specifically excused.

Judge Carter testified that he decides whether or not a bench warrant should be issued for a defendant’s failure to appear in court. A defense attorney is sometimes, but not always, contacted by telephone prior to the issuance of a warrant. The witness testified that pursuant to CPL 550.10 a defendant may be summoned to court by way of either notification or the issuance of a bench warrant.

This concluded the trial testimony.

To the extent the claim can be read to include a cause of action for false arrest or imprisonment it must fail.[1] To establish a cause of action for false arrest or imprisonment a claimant must show "(1) that the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged..." (Broughton v State of New York, 37 NY2d 451, 456 [1975]), cert denied sub nom. Schanbarger v Kellogg, 96 S Ct 277 [1975]). "[W]here a facially valid order issued by a Court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment" (Holmberg v County of Albany, 291 AD2d 610, 612 [2002], lv denied 98 NY2d 604 [2002]; see also Nuernberger v State of New York, 41 NY2d 111 [1976]; Harty v State of New York, 29 AD2d 243 [1968], affd 27 NY2d 698 [1970]; Salzano v Town of Poughkeepsie, 300 AD2d 716 [2002]). Inasmuch as it is undisputed both that the bench warrant was facially valid (see CPL 550.10) and that the Albany City Court had preliminary jurisdiction of the matter (see CPL § 10.30 [2]), liability cannot be predicated on the theory of false arrest or imprisonment.[2]

To the extent the claim is predicated on a negligence theory of liability, the Court finds that the defendant is immune from liability for the conduct of Judge Carter in issuing the bench warrant authorizing the claimant's arrest. The doctrine of judicial immunity is deeply rooted in the common law and is “necessary to assure that judges, advocates and witnesses can perform their respective functions without harassment or intimidation” (Butz v Economou, 98 S Ct 2894, 2913 [1978]). The doctrine is extremely broad. “Acts performed in excess of jurisdiction are still subject to the privilege and it is only those acts performed in the clear absence of any jurisdiction over the subject matter that fail to come under the umbrella of immunity” (Harley v State of New York, 186 AD2d 324, 325 [1992], appeal dismissed 81 NY2d 781 [1993]). It appears to be undisputed that preliminary jurisdiction over the criminal charges brought against the claimant properly rested in the Albany City Court (see CPL § 10.30 [2]).

In similar circumstances, it has been held that a Judge is immune from liability. For example, in Rosenstein v State of New York (37 AD3d 208 [2007]) even conduct which was allegedly "malicious or corrupt" such as a Housing Court Judge allegedly changing the date of trial without notifying the claimant in order to grant a default judgment in favor of a landlord was cloaked with absolute immunity (id. at 208-209). In Salzano v Town of Poughkeepsie (300 AD2d 716 [2002]), the Appellate Division, Third Department held that a Town Judge was immune from liability for the inadvertent failure to revoke a bench warrant following the plaintiff’s appearance in court. Perhaps most closely analogous to the facts in the instant matter are those in Word v City of Mount Vernon (65 AD2d 622 [1978], lv denied 47 NY2d 706 [1979]) where a City Court Judge directed that a bench warrant be issued upon the mistaken belief that the plaintiff had failed to appear in court. The Appellate Division affirmed dismissal of the complaint, holding that the doctrine of judicial immunity protected the defendant from liability. Concerning the instant matter, accepting for the sake of argument that Judge Carter was mistaken with regard to the need to appear on the control date, or that the matter was erroneously scheduled for an appearance when it should have been scheduled for a control date, the Judge is protected from liability under the doctrine of judicial immunity.
As to the acts of Court personnel, “[t]he common law provide[s] absolute immunity from subsequent damages liability for all persons – governmental or otherwise – who [a]re integral parts of the judicial process” (Mosher-Simons v County of Allegany, 99 NY2d 214, 220 [2002], quoting Briscoe v LaHue, 460 US 325, 335 [1983]; see also Swain v State of New York, 294 AD2d 956 [2002], lv denied 99 NY2d 501 [2002] [Allegedly negligent acts of the court and its clerk in the assignment of appellate counsel were cloaked with judicial immunity]). The cloak of judicial immunity exists not only for the protection of judges but also to protect other persons who are integral parts of the judicial process.

Prior to the decision of the Court of Appeals in Mosher-Simons v County of Allegany, supra, some courts held that ministerial acts performed by a judicial officer were not subject to absolute immunity (see Lombardoni v Boccaccio, 121 AD2d 828 [1986]; Sassower v Finnerty , 96 AD2d 585 [1983]). In Mosher-Simons, however, the Court of Appeals found such a distinction unnecessary where the conduct complained of was an integral part of the judicial process (see Mosher-Simons v County of Allegany, 99 NY2d at 221, n 4). It is therefore clear that the determination of whether the defense of judicial immunity applies depends not upon whether the conduct at issue is discretionary or ministerial, but upon whether or not it was performed as an integral part of the judicial function. The point was succinctly stated by the First Department in Weiner v State of New York (273 AD2d 95, 97 [2000]):
"Concededly, it has been held by some Courts that judicial immunity does not apply to ‘ministerial’ acts . . . . However, we take the view that the question of whether the act of a Court employee is immune from suit does not rest on whether it is discretionary or non-discretionary. On the contrary, judicial immunity ‘applies to all acts of auxiliary Court personnel that are ‘basic and integral parts of the judicial function,’ unless those acts are done ‘in the clear absence of all jurisdiction’ ” (internal quotation marks and citations omitted).
Thus, liability may not be founded on the allegation that Court personnel failed to notify the claimant or his attorney of the next court appearance date - arguably a ministerial function - as such conduct is an integral part of the judicial process and therefore protected by the cloak of judicial immunity. To hold otherwise would undermine the beneficial public policy supporting application of the rule. The common law recognized that “controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another . . . . Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” (Butz v Economou, 98 S Ct 2894, at 2913 [1978]).

Distinguishable from the facts in this case are those in Schwandt v State of New York (4 Misc 3d 405 [2004]). In Schwandt, Judge Sise held that City Police Court Clerks were negligent in failing to communicate the cancellation of an arrest warrant to the police. The court distinguished Weiner v State of New York, supra, stating:
"Here. . . the acts of the clerks were not the preparation of judicial process – for example the preparation of the warrant itself – rather, the at issue act was the transmittal of the already recorded cancellation to the police department. The judicial decision-making process had ended leaving the clerks with the ministerial duty to transmit information about a concluded proceeding to ensure an individual’s liberty would not be jeopardized. The transmittal of information, or the failure to do so, on these facts is not an integral part of the judicial process which would warrant application of judicial immunity [citations omitted] (Schwandt v State of New York, 4 Misc 3d 410-411)."
Here, unlike the facts in Schwandt, the judicial decision making process had not ended and the alleged failure to notify the claimant or his attorney of the need to appear on the next court date was an integral part of the judicial process (cf. Steel v State of New York, 307 AD2d 919 [2003] [erroneous transmittal of sentencing information was not an integral part of the judicial process]. Accordingly, the doctrine of judicial immunity immunizes the defendant from liability for the conduct complained of in this case.

Dismissal of the claim is also appropriate, on the merits, irrespective of the issue of judicial immunity. The claim alleges that court personnel negligently failed to notify the claimant or his attorney of the necessity to appear in court on the December 1, 2005 "control date". The evidence adduced at trial indicates that claimant’s attorney, Mr. Magguilli, believed the matter was placed on the Albany City Court calendar as a control date to (i) provide the District Attorney time to determine whether the charges would be reduced to misdemeanors or tried as felonies in the County Court and (ii) avoid the necessity of an appearance in court had that determination not been made by the December 1, 2005 control date.

The proof establishes that the term "control date" is undefined and finds its meaning in the custom and usage of the Albany City Court. Mr. Magguilli cites his experience practicing in Albany City Court as the basis of his understanding that no appearance is required in court on a control date. Judge Carter, sitting in the Criminal Part of Albany City Court was, however, quite clear in his statement cited earlier herein that both parties are required to appear on a control date. To the extent the court must choose which interpretation of the term is correct the court finds that Judge Carter's testimony concerning the meaning of the term in Albany City Court is most credible. Upon such a finding it is clear that there can be no negligent failure to provide the claimant notice of his duty to appear as the transcript of the October 12, 2005 proceedings (Exhibit 8) makes clear not only that Mr. Magguilli had notice of the December 1, 2005 control date but that the date was selected at Mr. Magguilli's request. In this regard the transcript contains the following:
"The Court: Colin Hennessy.

Mr. Hennessy: Hello, Your Honor.

Mr. Magguilli: Judge, I've spoke with Mr. Lynch on this matter and I was wondering if I could have a control date of December 1st. This case has gone up for review.

The Court: December 1st.

Mr. Magguilli: Thank you, your Honor.

The Court: Your [sic] welcome.

Mr. Hennessy: I appreciate it."
Mr. Magguilli's mistaken understanding that a control date did not require an appearance does not constitute a ground for the imposition of liability upon the State. There would be no basis for liability on the facts of this case even if the Court accepted Mr. Magguilli's testimony that no appearance was required on the December 1, 2005 control date. Judge Carter is immune from liability for the issuance of the bench warrant as discussed earlier herein and there could be no negligent failure by court personnel to provide notice that the claimant was required to appear where the claimant's own proof, if believed, would establish that no such appearance was required.

The Court finds that the conduct of both Judge Carter and Albany City Court personnel fell within the scope of judicial immunity and may not, therefore, serve as a basis for the imposition of liability upon the defendant. Moreover, the Court finds that, in any event, the claimant failed to establish the defendant’s negligence by a preponderance of the credible evidence.

Based on the foregoing, the claim is dismissed. All motions not decided herein are denied as moot.

Let judgment be entered accordingly.

May 22, 2008
Saratoga Springs, New York

Judge of the Court of Claims

[1]. Specifically, the claim alleges that the claimant was “falsely arrested, detained and imprisoned” and that the defendant was negligent “in failing to maintain accurate and correct court files; and in negligently training and supervising court personnel, such that neither claimant nor his attorney [were] notified of a court appearance, resulting in the issuance of a bench warrant for claimant” (see Exhibit 1, claim ¶ 5, p.2).
[2]. Additionally it appears that the claimant was arrested and confined by the Albany City Police for whose conduct the State may not be held liable.