Opinion
No. SCR 392/12.
2012-10-11
Edward GIBSON, Claimant, v. Thomas ADINOLFI, Defendant.
Claimant is not represented by counsel. Defendant is represented by the New York State Attorney General.
Claimant is not represented by counsel. Defendant is represented by the New York State Attorney General.
PHILIP S. STRANIERE, J.
Claimant, Edward Gibson, commenced this day small claims action against the defendant, Thomas Adinolfi, an attorney at law and volunteer small claims arbitrator, alleging that the defendant in his role as a small claims arbitrator engaged in “racial profiling, judicial misconduct, racism.” Currently before the court is a motion to dismiss claimant's cause of action on the ground that the small claims court lacks subject matter jurisdiction over any litigation brought against a small claims arbitrator.
Claimant opposed the motion and submitted extensive documentation to establish that his health problems require the matter to remain in Richmond County. Claimant is not represented by counsel. Defendant is being defended by the New York State Attorney General.
Background:
Claimant commenced a small claims action (SCR No.1096/11) against the City of New York seeking damages for “negligence” and presumably some personal injuries he suffered as a result of the “negligence” because the New York City Police Department allegedly refused to take him for medical treatment after his arrest on June1 and 2, 2011 (claimant used both dates in his papers). Claimant was taken to the 120th Precinct on Staten Island and indicated that he informed the police of his multiple health issues and insisted that he be taken to the nearest hospital. He alleges the police denied his request.
As a result of this incident, claimant filed a complaint with the New York City Civilian Complaint Review Board (Case # 201108437). In addition, in August 2011 he filed a claim with the Comptroller of the City of New York seeking damages for the alleged violation of his civil rights (Claim # 2011PI028457). The claimant failed to submit any documentation to this court as to what was the result of his complaint to the review board. In regard to the Notice of Claim, claimant also failed to submit any documentation as to the results of that complaint. Presumably his claim was not resolved to his satisfaction as he commenced a small claims action against the City for his alleged injuries.(SCR # 1096/11).
On August 31, 2011, claimant filed a small claims action (SCR# 1096/11) against the City of New York, alleging negligence on June 2, 2011. Based on the date of the filing of his small claims action and the notice of claim, it appears that this small claims action was premature. General Municipal Law § 50–i, requires that at least thirty days have had to expire before a civil action may be commenced against the City. The Comptroller acknowledged receipt of the claim on August 15, 2011 and the small claims action was filed on August 31, 2011. So unless the Notice of Claim was filed with the Comptroller before August 1, 2011, the small claims action was premature.
In spite of that apparent defect, claimant was given his day in court. The initial trial date was December 2, 2011. The case was adjourned until March 23, 2012. On one of those two dates, the court permitted claimant to raise the amount he was seeking as damages from $3,500.00 to $5,000.00.
On March 23, 2012, claimant elected to have his case heard by an arbitrator and not by the court. The procedure at every small claims session is for the clerk to read a statement advising all litigants in attendance of their option to have their case heard either by an arbitrator or the judge. Litigants are notified that there is no appeal from an arbitrator's decision. In order to ensure that the parties understand this rule, prior to the arbitrator conducting a hearing, the parties are asked to sign a “consent to arbitration.” Both claimant and the City of New York signed such a consent before the arbitrator, Thomas Adinolfi. Arbitration of small claims actions is authorized in the Rules of the New York City Civil Court § 208.41(n).
After a trial on that date, the arbitrator dismissed claimant's cause of action against the City and entered a judgment in favor of the defendant. There being no appeal from the decision of an arbitrator, the claimant commenced the current action (SCR# 392/12) alleging that the arbitrator engaged in “racial profiling, judicial misconduct and racism.”
These are serious allegations not to be taken lightly. But because there is no record made when a small claims case is heard by an arbitrator, every arbitrator is open to such charges by dissatisfied litigants. Hopefully claimant is not asserting a baseless claim as a negotiating tool to achieve a recovery to which he is not entitled to because he lost his small claims case on the merits. To do so would be unconscionable and would diminish the ability of the court system to adequately identify and address real instances of racism and prejudice when they occur. The court system has zero tolerance for discrimination of any kind.
It should be noted that claimant is not a stranger to the legal process having previously brought another small claims action against the City of New York alleging assault, defamation of character, false arrest, destruction and theft of personal property on March 28, 2007. That case was heard before a judge and claimant's cause of action was dismissed by the judge after a trial when the defendant was unable to establish that he had timely filed his notice of claim as required by the General Municipal Law § 50–e.
Case Against the City in 2011:
As noted above because the underlying small claims action was heard before an arbitrator, there is no record from which this court or any court can determine what happened. Ultimately, at a trial it will be a case of whose story sounds more credible. It should be pointed out that the fact that claimant lost the case does not mean he was the “victim” of “racism.” Based on the nature of his claim, that the police violated his civil rights by not taking him to the hospital after his arrest, he has a difficult case to prove even had he had the assistance of counsel.
Without knowing the facts of the case there are several questions which come to mind which if the claimant was not prepared to answer would result in a dismissal of his claim. Did claimant produce any documents to establish that the police have a procedure and protocol to follow in situations as he alleged existed? If he did, did he establish that they breached that protocol? Did he subpoena any police officers to testify? How did he establish his medical condition? Did he inundate the arbitrator with uncertified medically related documents such as he has presented in regard to this motion or did he produce certified medical records and reports to establish the nature of his health? Did he have an expert testify as to what was the harm he suffered, if any, by the failure of the police to take him to the hospital when he asked?
The lack of any of this evidence all would be grounds for an arbitrator to rule against him and dismiss his claim.
Motion to Dismiss:
Defendant arbitrator is now represented by the N.Y. State Attorney General and he is seeking to have the small claims case dismissed because the proper place to bring such a claim is the Court of Claims. Claimant does not appear to be opposing this motion on that ground necessarily, but seems to be alleging that his health situation makes it difficult for him to travel off of Staten Island and if he has to go to another borough for a trial it would be a hardship. Although the court might be sympathetic to his condition, such an assertion is not grounds to give the Civil Court jurisdiction over matters assigned to another court such as the Court of Claims.
It is clear that the defendant, even though a volunteer arbitrator, is considered an “employee” of the New York State pursuant to Public Officers Law § 17 [Babylon Milk & Cream Co., Inc., v. Horvitz, 4 Ad2d 777(1957); Rubenstein v. Otterbourg, 78 Misc.2d 376 (1973) ]. As such the exclusive jurisdiction of this case is the Court of Claims [New York State Constitution Article 6 § 9; Court of Claims Act § 9; Olmstead v. Britton, 48 Ad2d 536 (1975) ].
Although racism is a serious allegation, there is case law that holds that a judge, and in this case the volunteer arbitrator operating in the role of a judge, may be absolutely immune from any civil liability for acts done in their official capacity even when the acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly [Murph v. State of New York, 98 Misc.2d 324 (1979) ].
Further, assuming that there was some basis for the allegation, of which at this time there is not even a scintilla of proof, claimant would have to establish that he would have prevailed on the underlying claim but for the alleged racism. As noted above there is nothing in the record to establish that he would have prevailed on his claim against the City irrespective of the alleged racism. Or is his allegation that he accepts the dismissal of the claim against the City by the arbitrator, but is asserting that he was somehow and in some other manner harmed by the alleged racism?
The above being said, absent some harm unrelated to the lawsuit against the City, caused by the alleged racism, claimant's relief is not a claim against the arbitrator, but to bring a special proceeding pursuant to Civil Practice Law & Rules Article 75 to vacate the award in favor of the defendant. CPLR § 7511 provides in regard to vacating or modifying an award:
(b)Grounds for vacating.
1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice on intention to arbitrate if the court finds the rights of that party were prejudiced by:
(i) corruption, fraud or misconduct in procuring the award; or
(ii) partiality of an arbitrator appointed as a neutral;......
Clearly, discrimination and bias would be “misconduct” under the statute.
Claimant has not followed this statutory procedure with its requirement that such an application had to have been made within ninety days of the original award. The arbitrator rendered his decision on March 23, 2012. Claimant had ninety days from that date to bring an action to vacate the arbitrator's award that is until June 21, 2012. Any such application had to be on notice to the City of New York, the original defendant. None was made.
Claimant has failed to act in a timely manner to protect his rights in regard to the claim against the City. Instead on March 29, 2012, within six days of his court appearance, he filed this claim alleging the loss of his case was due racial profiling. It should be noted that the claim card of the court says on April 23, 2012 which is obviously a typographical error because a case could not have been brought before the date of the incident.
Conclusion:
Defendant's motion is granted. For all of the above reasons this case is dismissed. First, claimant has no cause of action against the defendant arbitrator acting in his official capacity. He is immune from suit. Second, if there is any cognizable claim claimant must bring it in the Court of Claims. If the Court of Claims accepts jurisdiction, then claimant may have to apply to that court in regard to a change of the location of the trial assuming he can establish that his health issues are such that require some accommodation be made for him. Third, claimant's relief was to bring a special proceeding pursuant to Article 75 of the CPLR upon notice to the City of New York within ninety days of the arbitrator's award. Claimant failed to do so and is now time barred from seeking any redress in that regard.
Motion granted. Claimant's case is dismissed.
The foregoing constitutes the decision and order of the court.