Opinion
# 2018-032-060 Claim No. 130701 Motion No. M-92338
09-26-2018
MATTHEW GENTRY v. THE STATE OF NEW YORK
Matthew Gentry, Pro Se No Appearance
Synopsis
The claim is dismissed for failure to comply with the service requirement of Court of Claims Act § 11.
Case information
| UID: | 2018-032-060 |
| Claimant(s): | MATTHEW GENTRY |
| Claimant short name: | GENTRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130701 |
| Motion number(s): | M-92338 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Matthew Gentry, Pro Se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | September 26, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On December 11, 2017, claimant, an inmate proceeding pro se, filed a claim with the Clerk of the Court seeking damages for "malfeasance" committed by a judge (Verified Claim ¶ 2). On its own motion, the Court issued an Order to Show Cause, dated May 30, 2018, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11. As of the date of this Decision and Order, defendant has not responded to the Order to Show Cause and issue has not been joined in the action. Claimant filed a response to the Order to Show Cause on June 20, 2018.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
The Affidavit of Service attached to the filed claim indicates that the claim was served by certified mail, return receipt requested. However, the Affidavit of Service states that the claim was served only upon the Albany County Courthouse and the Court of Claims; it fails to state that a claim was served upon the Attorney General. In his response to the Court's Order to Show Cause, claimant states that he served the claim upon the Attorney General. However, claimant does not provide the date of service, nor does he provide a certified mail return receipt. Thus, the Court finds that the Affidavit of Service fails to establish that the claim was served upon the Attorney General, rendering the claim jurisdictionally defective (Gorham v State of New York, UID No. 2017-038-576 [Ct Cl, DeBow, J., Oct. 11, 2017]). Claimant has failed to meet his burden of establishing proper service (see Court of Claims Act § 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723).
The Court further notes that, even if claimant had properly served the claim, the claim would be dismissed for failure to state a cause of action. The only allegation contained in the claim is that a State trial court judge erred in failing to hold a suppression hearing prior to claimant's trial (Verified Claim ¶ 2). It is well settled that a ' "[j]udge is immune from civil liability for acts done in the exercise of his [or her] judicial function' " (Best v State of New York, 116 AD3d 1198 [3d Dept. 2014], quoting Salzano v Town of Poughkeepsie, 300 AD2d 716, 717 [3d Dept. 2002][internal quotation marks and citation omitted]). Likewise, the State cannot be held responsible, under the theory of respondeat superior, for any alleged errors made by its judges in their judicial capacity (see Koeppe v City of Hudson, 276 AD 443 [3d Dept. 1950]; Pooler v State of New York, UID No. 2013-044-542 [Ct Cl, Schaewe, J., Oct. 15, 2013]). The only two exceptions to the doctrine of judicial immunity are: (1) when a judge does not act as a judge, and (2) when a judge, though acting under color of judicial authority, lacks any jurisdiction supporting judicial authority for the action taken (see Mireles v Waco, 502 US 9, 11-12 [1991]; Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept. 2000], lv denied 95 NY2d 759 [2000]). In the present case, claimant has alleged no facts which suggest that the judge referenced in the claim was acting as anything other than a judge, nor that they did not have jurisdiction to hear the matters that were before them. Accordingly, to the extent the claim is against a judge of the State, it must be dismissed.
Based upon the foregoing, it is hereby
ORDERED, that the Court's motion (M-92338) is GRANTED and the claim (No. 130701) is DISMISSED.
September 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on December 11, 2017. 2. Order to Show Cause, dated May 30, 2018. 3. Letter from claimant, sworn to on June 15, 2018.