New York State Court of Claims

New York State Court of Claims

BRADY v. THE STATE OF NEW YORK, #2008-028-505, Claim No. NONE, Motion No. M-73867


Synopsis


Movant’s motion to vacate a prior order of this Court is denied. It is movant’s failure to adequately perfect his appeal, not the content of the decision and order being appealed, that accounts for his difficulty in obtaining appellate review.


Case Information

UID:
2008-028-505
Claimant(s):
KEVIN PATRICK BRADY
Claimant short name:
BRADY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73867
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
KEVIN PATRICK BRADY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 15, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on movant’s motion to “vacate and remand” a prior order of this Court:

1. Notice of Motion and Supporting Statement (captioned “Motion to Vacate and Remand”) of Kevin Patrick Brady, pro se, with annexed Exhibits; and


2. Affidavit in Opposition (none received).


Filed papers: Decision and Order, Brady v State of New York, UID #2006-028-586, Claim No. NONE, Motion No. M-71491 (Ct Cl Oct 4, 2006), Sise, P.J.


By this motion, movant is asking the Court to “vacate it’s [sic] summary dismissal and reopen the claims it has wrongfully, summarily and prematurely dismissed,” referencing a decision dated October 2, 2006 and contending that it was too incomplete “to constitute a final order” and was therefore not appealable.

The decision to which he refers appears to be the Court’s decision and order in Motion No. M-71491, which was deemed a motion for permission to late file (Brady v State of New York, et al, UID #2006-028-586, Claim No. NONE, Motion No. M-71491 [Ct Cl 2006], Sise, P.J.). That motion was denied on the ground that the proposed claim submitted by movant was meritless on its face, in that it sought to recover money damages based on the alleged negligence or intentional tort of various judges and prosecutors. As was noted in that decision, “the actions of judicial officers in carrying out their judicial function are entitled to absolute immunity from liability,” as are “actions performed by the prosecutor which are associated with the prosecutorial phase of the criminal process.” (Id.)

An order denying permission to late file may be appealed (see e.g. Best v State of New York, 42 AD3d 699 [3d Dept 2007]), and thus no further action, or revision, on the part of the Court would be needed to permit movant to take an appeal. Movant’s difficulty in perfecting the appeal of that decision and order appears to be assembling an acceptable record on appeal (see Brady v State of New York, UID #2007-028-543, Claim No. NONE, Motion No. M-72717 [Ct Cl 2007], Sise, P.J.; Brady v State of New York, et al, UID #2007-028-571, Claim No. NONE, Motion No. M-73541 [Ct Cl 2007], Sise, P.J.).

Movant’s motion is DENIED.



January 15, 2008
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims