New York State Court of Claims

New York State Court of Claims
MOORE v. THE STATE OF NEW YORK, # 2017-032-052, Claim No. 128551, Motion No. M-90021, Cross-Motion No. CM-90231

Synopsis

Claimant's motion to amend is denied and defendant's cross-motion to dismiss is granted for lack of subject matter jurisdiction.

Case information

UID: 2017-032-052
Claimant(s): KHARI O. MOORE, ESQ.
Claimant short name: MOORE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128551
Motion number(s): M-90021
Cross-motion number(s): CM-90231
Judge: JUDITH A. HARD
Claimant's attorney: Khari O. Moore, Esq., Pro Se
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Anthony Rotondi, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: October 3, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On or about September 20, 2016, claimant filed and served upon the Attorney General a Verified Claim, alleging that defendants State of New York, the Committee for Character and Fitness for the New York State Supreme Court, Appellate Division, Third Department (Character and Fitness Committee), and John Does 1-3 arbitrarily denied him admission to the New York State Bar (Claim, 2). Claimant further alleged that a report authored by members of the Character and Fitness Committee contained "mischaracterizations and fabrications" regarding claimant (id.). On February 21, 2017, claimant filed with the Court a motion seeking to amend his claim.(2) Defendant opposed the motion on the ground that the proposed amended claim lacks merit, and filed a cross-motion to dismiss the claim. For the reasons that follow, claimant's motion to amend his claim is denied, and defendant's motion to dismiss the claim is granted.

MOTION TO AMEND

As relevant here, "[a] party may amend his or her pleading . . . at any time by leave of court or by stipulation of all parties" (CPLR 3025 [b]). Such leave " 'shall be freely given' absent prejudice or surprise resulting directly from the delay" or a showing that the proposed amendment plainly lacks merit (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b]; see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]).

Claimant's proposed amended claim asserts that members of the Character and Fitness Committee defamed him, and that as a result of the defamatory statements, claimant was denied admission to the New York State Bar. Defendant argues that the claims are meritless.

First, defendant argues that the defamation cause of action in claimant's proposed amended claim is barred by the one year statute of limitations applicable to claims for defamation (see CPLR 215 [3]). A cause of action for defamation accrues, and the statute of limitations begins to run, on the date that the last defamatory statement is made (Lancaster v Town of E. Hampton, 54 AD3d 906, 907 [2d Dept 2008], citing CPLR 215 [3]). Here, claimant alleges that the alleged defamatory statements were made on August 18, 2015 (Proposed Amended Claim, 11 & 35). Even if claimant were to assert that defendant had notice of the defamation claim upon service of the original claim, said claim was filed on September 19, 2016, and served on September 20, 2016, outside the one year statute of limitations. Thus, the defamation claim is untimely.

Second, defendant argues that claimant's second cause of action must be dismissed because it fails to satisfy the pleading requirements of Court of Claims Act 11 (b), and the Court of Claims lacks subject matter jurisdiction over the Appellate Division, Third Department. The Court agrees as to the latter argument, and finds that the entire proposed claim is meritless.

Claimant's second cause of action asserts that: (1) he was denied admission to the New York State Bar "with no explanation whatsoever" (Proposed Amended Claim, 34), and (2) the defamatory statements made on August 18, 2015 caused the denial of claimant's application for admission to the New York State Bar. The Court interprets this cause of action as a challenge to the Appellate Division, Third Department's determination denying claimant admission to the New York State Bar.

The power to regulate the admission of attorneys to the New York State Bar is vested in the Court of Appeals pursuant to Judiciary Law 53. Accordingly, the Court of Appeals has promulgated rules governing the admission of attorneys to the New York State Bar, including the rule that "[a] person shall be admitted to practice law in the courts of the State of New York only by an order of the Appellate Division . . ." (22 NYCRR 520.1 [a]). Along with passing the Bar examination, all applicants to the New York State Bar must show that they "possess[] the good moral character and general fitness requisite for an attorney and counselor-at-law as required by section 90 of the Judiciary Law" (id. 520.12 [a]). To that end, "[t]he Appellate Division in each department may adopt for its department such additional procedures for ascertaining the moral character and general fitness of applicants as it may deem proper . . ." (id. 520.12 [c]). The Appellate Division, Third Department refers each application for admission to the New York State Bar to its Committee on Character and Fitness for investigation (id. 805.1 [b]). The Character and Fitness Committee may then interview the applicant and conduct an investigation, or the acting chairman of the Character and Fitness Committee may designate members to complete the interview and investigation (id. 805.1 [d]). Following the interview and investigation, the Character and Fitness Committee may approve or disapprove the application (id. 805.1 [e], [f]). However, the ultimate decision of whether an applicant is admitted to the New York State Bar rests in the Appellate Division (see 520.1 [a]).

To the extent that claimant asserts claims against the Character and Fitness Committee, these claims are actually against the Appellate Division itself, as "the Committee [on Character and Fitness] is an organ of the Appellate Division . . ." (El-Shabazz v State of New York Comm. on Character and Fitness for the Second Jud. Dept., 2010 WL 1779990, at *1, 2010 U.S. Dist. LEXIS 137177, at *3 [ED NY, May 4, 2010, No. 09-CV-2168 (JG/LB)]). Accordingly, this Court must assess, as defendant has argued, whether the Court of Claims has subject matter jurisdiction over claims asserted against the Appellate Division. In that regard, the Court finds that it does not have subject matter jurisdiction over the Appellate Division, Third Department. The actions of the Character and Fitness Committee "are discretionary governmental functions, not subject to review in a civil action for damages in the Court of Claims" (Napolitano v State of New York, UID No. 2005-030-915 [Ct Cl, Scuccimarra, J., May 6, 2005] [finding that the actions of the Grievance Committee of the Appellate Division, Second Department are not subject to review in the Court of Claims]). Although claimant names the State of New York as a defendant in this action, he has failed to allege any details of how the State of New York committed tortious conduct. Because claimant's proposed amended claim does not assert any viable claims against the State of New York, it is meritless.

MOTION TO DISMISS

Defendant moves to dismiss the claim for failure to state a cause of action. The claim asserts that claimant was "arbitrarily" denied admission to the New York State Bar, and that "the denial was based partially or solely on race" (Claim, 2). Claimant further asserts that a report generated by a subcommittee of the Character and Fitness Committee of the Appellate Division, Third Department "was filled with mischaracterizations and fabrications" (id.). The Court finds that the claims asserted in the original claim are claims against the Appellate Division, and thus, the Court lacks subject matter jurisdiction over them, as explained in the preceding section of this decision.

CONCLUSION

Based upon the foregoing, the Court denies claimant's motion to amend the claim (M-90021), grants defendant's cross-motion for dismissal (CM-90231) and dismisses the claim (No. 128551).

October 3, 2017

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Verified Claim, dated September 13, 2016.

2. Notice of Motion to Amend Claim, dated January 30, 2017; and Affidavit in Support of Motion, sworn to by claimant on February 16, 2017, with exhibits.

3. Notice of Cross-Motion with Affirmation in Opposition to Claimant's Motion to Amend, and in Support of Defendant's Cross-Motion to Dismiss, affirmed by Anthony Rotondi, AAG on April 12, 2017, with exhibits.


2. Claimant asserts that he intended his original claim to be served as a "Notice of Intention to File a Claim," but that due to his unfamiliarity with New York law, he inadvertently labeled the first pleading filed in this action as a "Claim." (Affidavit in Support of Motion to Amend, 2).