New York State Court of Claims

New York State Court of Claims

BRADY v. STATE OF NEW YORK, GOVERNOR ELIOT SPITZER, CHIEF JUDGE JUDITH S. KAYE, ATTORNEY GENERAL ANDREW CUOMO, HENRY J. SCUDDER, ROBERT G. HURLBUTT, EUGENE FAHEY, SALVATORE MARTOCHE AND JOHN V., #2008-028-507, Claim No. NONE, Motion No. M-73707


Synopsis


Motion for permission to file a claim is denied on the ground that the claim lacks merit. Motion for default judgment is denied on the ground that, in the absence of permission to file his claim, movant did not commence an action against the State and, thus, the State had no duty to answer or otherwise respond.

Case Information

UID:
2008-028-507
Claimant(s):
KEVIN PATRICK BRADY
Claimant short name:
BRADY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, GOVERNOR ELIOT SPITZER, CHIEF JUDGE JUDITH S. KAYE, ATTORNEY GENERAL ANDREW CUOMO, HENRY J. SCUDDER, ROBERT G. HURLBUTT, EUGENE FAHEY, SALVATORE MARTOCHE AND JOHN V. CESTRA
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73707
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
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)
2008-028-513


Decision

The following papers were read on movant’s motion for permission to file a claim (Motion No. M-73707) and motion for default judgment (Motion No. M-73994):

1. Notice of Motion (Motion No. M-73707) and Supporting papers of Kevin Patrick Brady, pro se, with annexed Exhibits;


2. Affidavit in response of Janet A. Barringer, Senior Clerk, NYS Department of Law;


3. Letter reply of Kevin Patrick Brady, pro se;


4. Notice of Motion (Motion No. M-73994) and Supporting papers of Kevin Patrick Brady, pro se, with annexed Exhibits; and


5. Letter response of Paul F. Cagino, AAG.


Filed papers: None


Movant, appearing pro se, has filed with the Court of Claims a document that carries the following caption:
Notice of Claim and Motion for Constitutional Procedure on Motions for Relief; Notice of Exercise of Constitutional Rights; Motion in Demand of this Court to Read All Pleadings and Assertions of Rights Filed by Claimant; To Adhere Only to Rules and Law(s) in Compliance with State and Federal Constitutions and the U.S. Bill of Rights; To Require All Officers of the Court to Respect and Uphold Said Rights and for this Court to Rule in Compliance Thereof on Every Issue Raised Within; and Notice of Liability for Failure To Do So
This submission was accepted by the Chief Clerk as a motion for permission to file a claim. Because of events and rulings that have been set forth, in detail, in an earlier decision (Brady v State of New York, et al, UID #2007-028-559, Claim No. NONE, Motion Nos. M-72812, M-72976, CM-72927 [Ct Cl 2007], Sise, P. J.), movant must obtain permission of the Supervising Judge or his designee before he can commence an action in this Court.

Even without the benefit of responsive papers from defendant,[1] the Court must decline to grant movant permission to file the claim that he has submitted. The standard for determining whether a claim should be filed in these circumstances is well established: “permission must be granted if the litigant establishes that the proposed claim is based on allegations ‘leading to a conclusion’ that the State was at fault (Lee v State of New York, Claim No. 92855, March 19, 1996, Mega, P.J.; see also Lee v State of New York, Claim No. 79553, Motion No. M-41426, December 7, 1990, Corbett, P.J.)

As has been the case in past efforts, in the document now before the Court, movant is attempting to challenge a series of judicial rulings made by this and other courts, all of which ultimately relate back to events that took place in November 2002. In connection with a custody and visitation proceeding pending in Monroe County Family Court, criminal charges were brought against movant and he was incarcerated for a period of 90 days. This proposed claim, like others that he has previously submitted, questions the legality of the prosecution against him and the validity of a number of rulings made by several courts. Movant alleges, among other things, that the prosecution and the court rulings have deprived him of certain of his Constitutional rights. The actions of judicial officers in carrying out their judicial function are entitled to absolute immunity from liability (Salzano v Town of Poughkeepsie, 300 AD2d 716 [2002]; Bardascini v Reedy 51 AD2d 271, 272 [3d Dept 1976], lv denied 40 NY2d 803 [1976]), and actions performed by the prosecutor that are associated with the prosecutorial phase of the criminal process are also deemed quasi-judicial in nature and those properly carrying out such functions are entitled to absolute immunity (Lau v Cooke, 282 AD2d 887, 888 [3d Dept 2001]); Schanbarger v Kellogg, 35 AD2d 902 [3d Dept 1970], appeal dismissed 29 NY2d 649 [1971], cert den 405 US 919 [1972]). This immunity precludes any claim of negligence.[2] Because the proposed claim lacks legal merit, permission to file is denied.

In a related motion, movant seeks default judgment against the State because of its failure to serve its answer or otherwise respond to the document that, movant asserts, is a claim that he served and filed. As explained above, movant is required to obtain permission before commencing an action in this Court. Unless and until such permission has been granted, no document served on the Attorney General will serve to commence an action against the State, and consequently defendant’s duty to respond is not triggered. Accordingly, the State cannot be held in default for having failed to take such steps.

Movant’s motions are DENIED.



January 15, 2008
Albany, New York

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




[1]. Defendant has submitted an affidavit from a Senior Clerk of the New York State Department of Law stating that she has made a thorough review of papers filed with that department and finds “no record that the Motion to Late File in this matter was ever served on the Attorney General.” In his reply letter, movant indicates that he did, in fact, serve a copy of the document on the Attorney General, although he consistently refers to it as a “claim,” not a “notice of motion.” It is possible that service was effected, because one would not immediately recognize the document as a notice of motion. In any event, resolution of the motion will not rest on whether service was made on defendant.
[2]. The Court notes that there are a number of other defects in the document submitted by movant. For example, individual defendants, over whom this Court has no jurisdiction, are named, and equitable relief, which cannot be awarded in the Court of Claims, is sought in addition to money damages.