New York State Court of Claims

New York State Court of Claims

BRADY v. THE STATE OF NEW YORK , #2008-028-509, Claim No. NONE, Motion No. M-74024


Movant’s motion for reargument is granted but the Court adheres to its original decisions in a series of motions denying various forms of relief sought by movant. Neither of the cases cited by movant establish that this Court has jurisdiction to review the determinations of other courts or the propriety of prosecutions undertaken by the Attorney General.

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:
Defendant’s attorney:
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on movant’s motion for reconsideration of prior orders of this Court:

1. Notice of Motion of Kevin Patrick Brady, pro se, with annexed Exhibit;

2. Letter response of Paul F. Cagino, AAG; and

3. Supplemental Submission (captioned “Notice of Motion”) of Kevin Patrick Brady, pro se with annexed exhibits.

Filed papers: Decision and Order, 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.; Decision and Order, 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.; Decision and Order, Brady v State of New York, et al, UID #2007-028-569, Claim No. NONE, Motion No. M-73333 [Ct Cl 2007], Sise, P.J.; Decision and Order, Brady v State of New York, et al, UID #2007-028-572, Claim No. NONE, Motion No. M-73540 [Ct Cl 2007], Sise, P.J.; Decision and Order, Brady v State of New York, et al, UID #2007-028-571, Claim No. NONE, Motion No. M-73541 [Ct Cl 2007]

By this motion, movant is asking the Court to reconsider its decisions in a series of motions and cross-motions (listed above). All of these motions relate, in one fashion or another, to a complex series of events beginning with a custody and support proceeding in Monroe County Family Court and movant’s dissatisfaction with the terms of a 1996 support and visitation order issued by that court. There have been a number of lawsuits and other proceedings, in both State and Federal courts; at one point, claimant was convicted of criminal contempt in the second degree for violating the custody and visitation order (People v Brady, Index No. 2002/13647 [Monroe Co. Sup Ct 2003], Vanstrydonck, J.), for which he spent several months in jail.[1] In Federal Court, movant was eventually restrained from commencing any action relating to the Family Court proceedings without first obtaining permission from the District Judge (Brady v Irizarry, 2006 WL 1389754 [WD NY 2006]), and in New York State Supreme Court, movant has been enjoined from bringing or filing any other lawsuits or petition related to the Family Court matter without prior permission from the Presiding or Supervising Judge of that Court or his or her designee (Brady v Miller, Index No. 8309/95 Judgment, Order and Permanent Injunction, [NY Sup Ct March 5, 1996], Gorski, J.). With respect to actions that movant has sought to commence in the Court of Claims, this Court has also restricted movant’s ability to commence any action without first obtaining permission, based on “the power of the courts to require certain litigants, those who bring an excessive number of frivolous claims (or other proceedings), to obtain express permission of the Presiding Judge (or his designee) before being allowed to institute additional actions or proceedings” and held that movant must obtain such permission (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.).

The several occasions on which movant has attempted to obtain permission to file a claim in this court have been unsuccessful because, in each instance, it has been determined that the proposed claims lack apparent merit. Likewise, his motions for default judgment against the State have been denied because defendant’s obligation to answer or otherwise respond to a claim does not arise until a claim has been filed and served, and since no permission has been granted, that step has not occurred. In addition, movant has been unable to have the Court certify the record in an appeal of one of the earliest decisions because he has not provided a copy of the documents he wishes to have certified.

Movant has now submitted decisions in two cases which, he contends, have “on-point application to past and pending claims before this Court” and which require that there be “no further unilateral dismissals of his claims without cognizance of the controlling principles” (Notice of Motion). The motion is properly a motion to reargue (CPLR 2221[d]), inasmuch as movant seeks to establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]).

The first decision referenced by movant is Friedman v State of New York (29 AD2d 162 [3d Dept 1968]), an action commenced by an elected Supreme Court Justice to recover salary allegedly due to him for the period after he was removed from office by the Court on the Judiciary.[2] He challenged his removal, contending that the Court failed to follow necessary procedures and therefore lacked jurisdiction to order his removal. He then commenced an action in the Court of Claims, which was dismissed, among other reasons, because the question of whether the Court on the Judiciary exceeded its jurisdiction should have been addressed on direct review. The Third Department reversed and reinstated the action, holding in relevant part that because there was no other avenue to obtain review, the claimant was entitled to a determination, by the Court of Claims, of whether constitutional requirements had been met so as to confer jurisdiction on the Court on the Judiciary.

The Appellate Division decision in Friedman, to which movant had directed attention, was subsequently reversed by the Court of Appeals (24 NY2d 528 [1969], rearg denied 25 NY2d 958 [1969], appeal dismissed 397 US 317 [1970]), with the result that the Justice’s claim for lost salary was dismissed. In making its ruling, however, the Court of Appeals agreed with the Third Department that, because the ruling of the Court on the Judiciary could not be directly appealed, the Court of Claims had jurisdiction over the subject matter of the claim.[3]

The other case provided by movant involves an individual prosecuted for knowingly operating an adult care facility without a license. In People v Cuttita (7 NY3d 500 [2006]), the Court of Appeals held that the New York State Welfare Inspector General was not statutorily authorized to prosecute this person and that a letter from the Welfare Inspector General asking the Attorney General to investigate and prosecute certain matters was insufficient to give the Attorney General the necessary prosecutorial powers. As a result of this ruling, the accusatory instrument was dismissed. Subsequently, an action was commenced in the Court of Claims to recover damages in the amount of $500,000.00 (Cuttita v State of New York, UID #2007-044-521, Claim No. 113077, Motion No. M-72794 [Ct Cl 2007], Schaewe, J.). The claimant’s argument – that because the Court of Appeals had ruled that the prosecuting authority lacked jurisdiction to bring charges, the “causes of action for unjust conviction and malicious prosecution have automatically been established”– was rejected and the claim dismissed on a determination that some of the necessary elements of both malicious prosecution and unjust conviction were not pled and, as a matter of law, could not be proved.

Movant does not explain the relevance of these cases to his several attempts at commencing an action in this Court, and the connection is not immediately evident. It is possible that by citing Friedman, movant wishes to argue that in the appropriate situation this Court can consider whether another court acted within its jurisdiction in taking certain actions. While that may be a fair interpretation of the holding of those decisions, the situation presented here is quite different from that presented in Friedman. Most significantly, there was no constitutional or statutory provision for taking an appeal from the Court on the Judiciary (Friedman, 24 NY2d at 536), whereas rulings of Supreme Court and of the Court of Claims, like those of which movant complains, can be appealed to the Appellate Division and, when final, to the Court of Appeals. Where such direct review is available, “[a] court has the authority to pass upon its own jurisdiction, and its determination . . . is res judicata in a collateral action”. (id. at 535, citing Chicot County Drainage Dist. v Baxter State Bank, 308 US 371 [1940].) Consequently, any challenge to the jurisdiction of the various courts to issue the rulings of which movant complains cannot be brought in this Court.
The rulings in Cuttita actions could be interpreted to hold that the Court of Claims can have jurisdiction to award damages when someone is prosecuted by an entity that does not have jurisdiction to commence such a prosecution and where the facts surrounding such prosecution satisfy the elements of a recognized tort. If movant is attempting to argue that there was some jurisdictional problem with his prosecution for criminal contempt, a prosecution that was undertaken by the office of the Attorney General, the analogy cannot work. In Cuttita, the determination that neither the Welfare Inspector General nor the Attorney General had jurisdiction to prosecute the individual was made not by the Court of Claims but, rather, by the Court of Appeals on direct review. It was only after that determination had been made that an action for money damages in this Court could be contemplated. Consequently, the Cuttita decisions cannot support movant’s apparent contention that this Court would have the authority to review his criminal conviction and, should there be a determination that the Attorney General acted outside his jurisdiction and assuming all other factors were present, award money damages for any injury resulting from that prosecution.

Movant’s motion for reargument is GRANTED and, upon reargument, the Court adheres to its original decisions.

January 16, 2008
Albany, New York

Judge of the Court of Claims

[1]. The background is most fully discussed in Brady v Marks, 7 FSupp 2d 247 [WD NY 1998]) and 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, J.)

[2]. The Court on the Judiciary was authorized by section 22, Article 6 of the New York State Constitution, which was repealed November 8, 1977. A new section 22, which established the Commission on Judicial Conduct, was added on that date.
[3]. The claim was nevertheless dismissed upon the high court's determination that it failed to state a cause of action, because there was no basis for holding that claimant was deprived of a fair trial by a fair and impartial tribunal.