The Court granted Defendant's motion to dismiss for failure to state a cause of action, made pursuant to CPLR § 3211 (a) (7), holding that absolute judicial immunity applies to the quasi-judicial acts of a law clerk in conducting Court proceedings on behalf of a Judge.
|Claimant short name:||GOOKINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-80028, M-80117|
|Judge:||GLEN T. BRUENING|
|Claimant's attorney:||BEVERLY GOOKINS, Pro Se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: G. Lawrence Dillon, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 13, 2011|
|See also (multicaptioned case)|
Beverly Gookins, Claimant in this case appearing pro se, seeks damages alleged to have been sustained on March 7, 2011 when the Herkimer County Family Court failed to issue an Order of Protection against Claimant's former daughter-in-law. Defendant moves pursuant to CPLR § 3211 (a) (7) and (8) for an order dismissing the Claim based on Claimant's failure to state a cause of action. Claimant opposes the motion and also moves seeking, among other things, a preliminary conference and an opportunity to request a bill of particulars. Defendant's potentially dispositive motion to dismiss the Claim will be considered first.
The following facts are alleged in the Claim: Claimant's adult son and his former wife, Kathleen Mauro, were involved in a contentious Family Court proceeding in the Herkimer County Family Court. On January 10, 2011, Claimant appeared at Family Court to provide a statement related to her son's proceeding. On that date, Claimant alleges, among other things, that Mauro verbally abused her and that when Claimant left the courthouse parking lot in her vehicle, Mauro cut her off with Mauro's vehicle and "[gave Claimant] the finger with malice and anger." As a result of this incident, Claimant filed a Family Offense Petition against Mauro alleging disorderly conduct, harassment in the first degree and menacing in the second degree. An appearance on the Family Offense Petition and other related matters occurred on February 16, 2011 before Bart M. Carrig, Esq., Senior Law Clerk to Herkimer County Family Court Judge John J. Brennan. At that appearance, Claimant alleges that Mauro and Mauro's attorney consented to an "Order of Protection" in Claimant's favor. Thereafter, on March 7, 2011, Claimant received notification from Family Court via regular mail that a conference on her Family Offense Petition was scheduled for May 19, 2011 with a fact-finding hearing scheduled to commence on June 16, 2011. Claimant asserts that the actions of Attorney Carrig in failing to advise Judge Brennan that Mauro had consented to the relief sought in the Family Offense Petition constituted negligence and a breach of Attorney Carrig's oath of office as required by 22 NYCRR § 25.21. Claimant asserts that she has been "[f]alsely [i]mprisoned since 1/10/11" as a result of Attorney Carrig's actions, that she became afraid to continue as a witness in her son's custody proceeding and, based on her fear of retaliation from Mauro, that she has been unable to spend time with or communicate with her grandchildren.
In making a determination regarding Defendant's motion to dismiss made pursuant to CPLR § 3211 (a) (7), "[the] claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true" (IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 ). "[T]he dispositive inquiry is whether [Claimant] has a cause of action and not whether one has been stated i.e., 'whether the facts as alleged fit within any cognizable legal theory' " (id., quoting Leon v Martinez, 84 NY2d 83, 87-88 ). In making this determination, factual material may be considered for the limited purposed of remedying defects in the pleading (see Nonnon v City of New York, 9 NY3d 825, 827 ).
In support of its motion, Defendant argues that judicial immunity applies to the acts of Attorney Carrig in conducting Court proceedings on behalf of Judge Brennan. Thus, Defendant concludes that Claimant has failed to state a valid cause of action. In opposition to Defendant's motion, Claimant, while referencing various statutes and rules, argues that absolute immunity does not apply in this action and that Attorney Carrig acted outside the scope of his jurisdiction. Claimant further asserts that Attorney Carrig can be held civilly liable for wrongful acts committed "without jurisdiction or without compliance with jurisdiction requisites." Finally, Claimant contends that cloaking Attorney Carrig with "quasi-judicial immunity" would encourage "[s]lip-[s]hod [w]ork."
The waiver of the State's sovereign immunity (see Court of Claims Act § 8) does not preclude the State from asserting common-law immunity-based defenses such as governmental, legislative and judicial immunity, which operate to foreclose liability as against the State (see Matter of World Trade Center Bombing Litigation, __ NY3d __, ___, 2011 NY Slip Op 06501, * 10 ). With respect to the defense of judicial immunity, "'[c]ourts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing'" (Mosher-Simons v County of Allegany, 99 NY2d 214, 219 , quoting Tarter v State of New York, 68 NY2d 511, 518 ). Accordingly, the doctrine of judicial immunity provides that judges will be absolutely immune from civil liability for judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously and corruptly (see Stump v Sparkman, 435 US 349, 356 ; Murray v Brancato, 290 NY 52, 55, ). The two exceptions to this immunity are when an action is not taken in the judge's judicial capacity and when the action, though judicial in nature, is taken in the complete absence of jurisdiction (see Mireles v Waco, 502 US 9, 11 ; Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000], lv denied 95 NY2d 759 ). Judicial immunity has been extended to those individuals who perform quasi-judicial functions - those functions that are "closely associated with the judicial process" (Cleavinger v Saxner, 474 US 193, 200 ; see Weiner v State of New York, 273 AD2d 95, 97 [1st Dept 2000]). As is relevant to this action, a law clerk for a judge, who "generally performs discretionary acts of a judicial nature" (Oliva v Heller, 839 F2d 37, 40 [2d Cir 1988]), has been described as an "extension of the judge at whose pleasure [he or she] serve[s]" (Oliva v Heller, 670 F Supp 523, 526 [SDNY 1987], affd 839 F2d 37 [2d Cir 1988]). Accordingly, "for purposes of absolute judicial immunity, judges and their law clerks are as one" (id.).
Here, there is no allegation that either Judge Brennan or the Herkimer County Family Court lacked jurisdiction over the Family Offense Petition filed by Claimant (see Family Court Act § 812  ["The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree. . . [and] menacing in the second degree"]). Other than bald conclusions that Attorney Carrig violated his oath of office and acted without jurisdiction, there is no factual allegation that Attorney Carrig was acting other than in a judicial nature on behalf of Judge Brennan. Had Claimant commenced an action against Judge Brennan rather than his law clerk, the judge would be entitled to absolute immunity (see Oliva v Heller, 670 F Supp at 526). Accordingly, all of the actions complained of are cloaked with judicial immunity for which the State may not be held liable (see Montesano v State of New York, 11 AD3d 436, 436 [2d Dept 2004]). To the extent that the Claim can be read to assert constitutional torts, Claimant has failed to allege facts that establish a constitutional violation (see Brown v State of New York, 89 NY2d 172, 177 ). Moreover, Claimant "fails to demonstrate how money damages are appropriate to ensure full realization of her asserted constitutional rights" (Martinez v City of Schenectady, 97 NY2d 78, 84 ). Even assuming Family Court denied her Petition, Claimant has not asserted that her request was not adequately considered or that she sought an appeal of any adverse determination. Finally, under any reasonable view of the facts alleged in the Claim, Claimant has failed to assert that she was ever confined (see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ), and accordingly, has failed to state a claim for false imprisonment.
Accordingly, Defendant's Motion No. M-80028 is granted, Claimant's Motion No. M-80117 is denied as moot, and the Claim is dismissed.
October 13, 2011
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Verified Claim, filed May 26, 2011, with attached Exhibits A-E;
Defendant's Notice of Motion filed May 27, 2011 and Affirmation of G. Lawrence Dillon, Esq., with attached Exhibits A and B.
Claimant's Notice of Motion filed June 10, 2011, with arguments submitted in opposition to Defendant's Motion and in support of Claimant's Motion.