Opinion
# 2018-038-567 Claim No. 131209 Motion No. M-92177
07-16-2018
FRANK MAKI v. CURRENT OR FORMER JUSTICES; SHARON A.M. AARONS BECKER CHRISTINE CLARK JANET DiFIORE MOLLY FITZGERALD LAHTINEN MICHAEL C. LYNCH ROSE STATE OFFICERS; MONICA A. DUFFY JEAN M. SAVANYU STATE OF NEW YORK
FRANK MAKI, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Aaron J. Marcus, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted. Claim sought monetary damages arising from conduct of courts relating to an action brought by claimant, and for the failure of the Committee on Professional Standards and the Commission on Judicial Conduct to investigate his complaints and in any event, defendant was entitled to absolute judicial immunity, and much of the claim fell outside the jurisdiction of the Court of Claims.
Case information
| UID: | 2018-038-567 |
| Claimant(s): | FRANK MAKI |
| Claimant short name: | MAKI |
| Footnote (claimant name) : | |
| Defendant(s): | CURRENT OR FORMER JUSTICES; SHARON A.M. AARONS BECKER CHRISTINE CLARK JANET DiFIORE MOLLY FITZGERALD LAHTINEN MICHAEL C. LYNCH ROSE STATE OFFICERS; MONICA A. DUFFY JEAN M. SAVANYU STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131209 |
| Motion number(s): | M-92177 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | FRANK MAKI, Pro se |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 16, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant has filed this claim in which he alleges that contracts into which he entered with the judicial system were breached by justices of the Supreme Court, Delaware County, the Appellate Division, Third Department, and the Court of Appeals, as well as by employees of the Third Department's Committee on Professional Standards ("the Committee") and the Commission on Judicial Conduct ("the Commission"). Defendant moves pursuant to various provisions of CPLR 3211 to dismiss the claim. Claimant, who is prosecuting the claim pro se, opposes the motion.
All members of the Committee on Professional Standards became members of the Third Department Attorney Grievance Committee on September 30, 2016 (see 22 NYCRR § 806.4 [b]).
In a lengthy and rambling pleading, the following facts are alleged, implied or readily inferrable. Claimant commenced an action in 2010 in Supreme Court, Delaware County, in which he alleged that certain medical providers should be found liable to him, which was dismissed in its entirety. In 2015, claimant commenced an action in the same court against the same defendants who were sued in the 2010 action. The instant claim asserts that the 2015 complaint contained three causes of action sounding in breach of contract, negligence and fraud. Justice Becker, to whom the 2015 action was assigned, dismissed the claim in its entirety, and the instant claim alleges, among other things, that Justice Becker erroneously characterized the 2015 action as one sounding in medical malpractice. Following Justice Becker's retirement, Supreme Court Justice Fitzgerald denied claimant's motion in the 2015 action to renew/vacate or for declaratory judgment, but "affirmed" sanctions that had been imposed upon claimant in Justice Becker's order.
The claim alleges that claimant appealed to the Appellate Division, Third Department from both orders of Supreme Court, which the Appellate Division affirmed on the ground that the 2015 action was barred by res judicata and collateral estoppel arising from the 2010 action inasmuch as all of the issues asserted in the 2015 action were or could have been fully litigated in the 2010 action. The instant claim alleges that the Appellate Division failed to recognize that the allegations and causes of action in the 2015 complaint were different than those alleged and asserted in the 2010 complaint, and that the issues of preclusion were erroneously decided by the Appellate Division. Claimant sought permission to appeal to the Court of Appeals, which was initially denied by that Court on finality grounds, and ultimately dismissed. The claim alleges that claimant's subsequent motion to reargue to the Court of Appeals was denied by Chief Judge DeFiore, and that the Court of Appeals breached claimant's contract with the judicial system.
The claim alleges that claimant submitted a complaint to the Committee on December 22, 2015 in which he asserted that the defense attorneys in the 2010 and 2015 actions had misrepresented certain facts and had mischaractarized the nature of the actions. The claim alleges that the Committee declined to investigate his complaint, and that Monica Duffy, the Committee's Chief Attorney, informed him that the issues raised in his complaint were more appropriately resolved by courts of law or other legal remedies (see Claim No.131209, ¶ 71 [b]). Claimant also submitted a complaint to the Commission in which he sought review of the conduct of Supreme Court Justices Becker and Fitzgerald, and Appellate Division Justices Lahtinen, Rose, Lynch, Clark, and Garry. Claimant was informed by Jean Savanyu, the Clerk of the Commission, that the Commission would not investigate the judges because "the facts do not rise to a level warranting an investigation" (id., ¶ 73 [c]).
The instant claim is asserted against the eight current and former judges and justices named above, as well as against "State Officers" Duffy and Savanyu, and the State of New York. It alleges that claimant "contracted with" Supreme Court, Delaware County and the Appellate Division, Third Department when he filed and served papers related to the 2015 action, and, in some cases, paid filing fees (see id., ¶¶ 12-17), and that such contracts included the right to submit complaints to the Committee and the Commission and have them conduct investigations (see id., ¶ 18). The claim generally asserts that the defendant judges erroneously decided the 2015 action upon improper facts or procedures, and that the acts that allegedly constituted breaches of his contracts also violated state and federal laws, court rules and claimant's state and federal constitutional rights. Inasmuch as the 2015 action was decided without review of its merits, claimant contends that "[s]ince the [claimant] contracted for legal decisions and has not received any, his contract with the judicial system has been breached" (id., ¶ 81) and that he was thereby deprived of "meaningful hearings and legal decisions" (id., ¶ 3). The claim asserts that defendants should be found "jointly and severally liable for breach of conduct," as should the State of New York under the doctrine of respondeat superior" (id., ¶ 2; see also WHEREFORE Clause). The claim seeks compensation for fees and expenses, the value of the loss of claimant's right to pursue the action, past and future medical expenses, loss of earnings and pain and suffering, punitive damages, interest, and a declaration that all of the judicial decisions are void (see id., WHEREFORE Clause).
At various and multiple places throughout the claim, claimant contends that defendants engaged in misrepresentation, fraud, error, and discrimination against claimant and against pro se litigants as a class, that they did not operate in good faith, reasonably, diligently or with due care (see e.g. Claim No. 131209, ¶¶ 32, 37 [a]; [b]; [h][i]; [j][iv]).
Defendant argues that although the claim is framed as alleging breach of contract, it seeks review of "prior [judicial] rulings and discretionary determinations made by quasi-judiciary state agencies" (Marcus Affirmation, ¶ 6), and that the claim should be dismissed because judicial immunity shields the State from liability for the actions of the judges and the employees as alleged in the claim. Defendant also argues that to the extent that the claim challenges an adverse administrative determination, this Court lacks subject matter jurisdiction because such challenges should be brought in Supreme Court pursuant to CPLR article 78. Defendant further contends that the Court lacks jurisdiction to hold the employees individually liable and to declare prior judicial rulings void. Defendant asserts that this Court lacks jurisdiction over any alleged federal constitutional tort, and that any state constitutional tort violation must fail because claimant has failed to establish that there is no alternate remedy. Defendant also argues that the claim fails to allege any accrual dates and is jurisdictionally defective pursuant to Court of Claims Act § 11. Claimant replies that the claim seeks compensation for breach of contract and that the actions of the judges and judicial employees alleged in the claim are not entitled to judicial immunity because they acted in the absence of jurisdiction. Claimant argues that the claim is timely as the claim accrued on February 15, 2018 when the Court of Appeals declined to accept his appeal, and that the claim states accrual dates for all of the alleged breaches.
As an initial matter, certain elements of the relief claimant seeks are unavailable as a matter of law. The only proper defendant to a claim in the Court of Claims is the State of New York because the Court's subject matter jurisdiction is limited to claims "against the state for . . . the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees" (Court of Claims Act § 9 [2] [emphasis added]; see alsoNY Const Art VI, § 9). This claim is therefore not viable with respect to the current and former judges and justices and state employees who are named individually as party defendants. As to the request in the claim for relief in the nature of declaring void prior judicial decisions or ordering investigations of judges and employees, this Court lacks jurisdiction to grant such "strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], citing (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]), even if the proposed claim states a cause of action upon which an award of money damages could lie (see Psaty v Duryea, 306 NY 413, 417 [1954]). Finally, punitive damages are unavailable against the State (see Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]).
As defendant correctly contends, absolute judicial immunity bars liability against defendant for the judicial actions of its judges, unless the challenged conduct was taken outside of the judge's official capacity, or in the "clear absence of jurisdiction" (Stump v Sparkman, 435 US 349, 357 [1978] [emphasis added]; LaPier v Deyo, 100 AD2d 710, 710 [3d Dept 1984]). "[S]ubject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it" (Matter of Frye v Village of Tarrytown, 89 NY2d 714, 718 [1997]). Judicial immunity will attach "even if [the challenged] acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly" (Sassower v Finnerty, 96 AD2d 585, 586 [2d Dept 1983], appeal dismissed 61 NY2d 756 [1984], lv denied 61 NY2d 985 [1984] [emphasis added]). Thus, whether absolute judicial immunity attaches in this matter turns on whether the judges were acting without jurisdiction.
The claim alleges that the courts in both the 2010 and 2015 actions "essentially proceeded without subject matter jurisdiction" (Claim No. 131209, ¶ 4 [f]), which claimant apparently asserts based upon the allegations that the courts wrongfully viewed the actions as sounding in malpractice (see id., at ¶ 4 [g]), and otherwise allegedly mishandled the motions and appeals before them. However, and as stated in a decision of the Court of Claims in a similar matter, "[t]he proceedings being referred to by [claimant] appear to involve judges acting as judges do: rendering decisions and rulings in accordance with the subject matter jurisdiction of the court in which he or she presides" (Munroe v State of New York, UID No. 2011-030-578 (Ct Cl, Scuccimarra, J., Aug. 8, 2011). There is nothing in the claim alleging or suggesting that the 2015 action brought by claimant was not properly before Supreme Court, or that the appeals were not properly before the appellate courts, or that any of those courts were acting in the clear absence of jurisdiction (see Stump v Sparkman, 425 US at 357, n7 [distinction between lack of jurisdiction and excess jurisdiction illustrated by examples of probate judge who hears criminal case acts in absence of jurisdiction whereas criminal court judge who convicts based upon nonexistent crime act in excess of jurisdiction]; see also Fraccola v State of New York, 40 Misc3d 1203[A], at *4 [Ct Cl 2013] [claim did not assert that the court lacked authority to hear matter, but that court acted improperly]; cf. LaPier v Deyo, supra [judge who is forbidden from hearing case due to consanguinity rules acted in absence of jurisdiction]). Therefore, defendant is not liable to claimant for the actions of any of the named judges because they are entitled to absolute judicial immunity. Moreover, the claim primarily alleges errors and omissions by the courts in their decision-making processes, and even if absolute judicial immunity did not attach, this Court lacks the jurisdiction to review the decisions of other trial and appellate courts (see Martocci v County of Ulster, UID No. 2001-028-557 [Ct Cl, Sise, J., Sept 6, 2001]).
Turning to the allegations that are addressed to non-judicial employees, " 'other neutrally positioned governmental officials, regardless of title, who are delegated judicial or quasi-judicial or quasi-judicial functions' " and " 'who [a]re integral parts of the judicial process' " are entitled to judicial immunity from "claims arising from the performance of [their] specific judicially delegated function" (Mosher-Simons v Allegany, 99 NY2d 214, 220 [2002], quoting Tarter v State of New York, 78 NY2d 511, 518 [1986] and Briscoe v La Hue, 460 US 325, 335 [1985]). The Committee and the Commission, the employers of Duffy and Savanyu, respectively, are charged with judicial or quasi-judicial functions in investigating and disciplining judges and attorneys (see NY Const Art VI, § 22; Judiciary Law §§ 42, 44, 90; 22 NYCRR Part 806, Part 7000), and are integral parts of the judicial process. The claim challenges the Commission's performance of a specific judicially delegated function, i.e. the investigation and discipline of judges, which is clearly entitled to judicial immunity, and Savanyu, the Clerk of the Commission, is responsible for "advis[ing] complainants of the commission's disposition of complaints" (22 NYCRR 7000.13 [a]), and was acting merely as a conduit to advise claimant of the Commission's conclusion that the facts presented by claimant did not warrant an investigation. Duffy, the Chief Attorney of the Committee, is responsible for "review[ing] and tak[ing] appropriate action respecting all complaints concerning conduct by an attorney . . . to whom the rules of [Part 806] apply" (22 NYCRR 806.5 [a], [b][1]), and thus, her conduct in the performance of her judicially delegated function is likewise entitled to judicial immunity. The claim does not allege that either the Committee (or Duffy) or the Commission (or Savanyu) lacked the authority to entertain claimant's complaints, or that the complaints were not properly before them, and thus judicial immunity applies to their actions. Thus, because all of the state defendants are entitled to absolute judicial immunity, liability against the State will not lie and the claim must be dismissed.
Even assuming that the actions of the judges and employees were not entitled to judicial immunity, the claim would be dismissed for lack of subject matter jurisdiction. First, the allegations against the judges would be dismissed as the claim fails to state the accrual dates for the alleged misconduct, rendering those allegations jurisdictionally defective under Court of Claims Act § 11 (b) (see James v State of New York, UID No. 2018-038-536 [Ct Cl, DeBow, J., Apr. 6, 2018], citing Lepkowski v State of New York, 1 NY3d 201, 209 [2003] [failure to state accrual date mandates dismissal under Court of Claims Act § 11 (b)]). Second, the claim as arising from the actions of the Committee and the Commission (and Duffy and Savanyu) are beyond the subject matter jurisdiction of the Court of Claims due to the nature of the relief actually sought.
To the extent that claimant seeks to cure any jurisdictional defects through amendment (Maki Affidavit, ¶ 98), such relief is unavailable (Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]).
To determine whether a claim falls within the jurisdiction of the Court of Claims, the Court must make two inquiries:
"Initially, the threshold question in determining the subject matter jurisdiction of the Court of Claims is whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim. The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain. Notably, an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims."
(Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks and citations omitted], lv denied 12 NY3d 712 [2009]). The subject matter jurisdiction of the Court of Claims is limited to actions against the State for money damages in certain types of actions (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997], citing Court of Claims Act § 9 [2]; Psaty v Duryea, 306 NY 413, 417 [1954]). As pertinent here, Supreme Court has exclusive subject matter jurisdiction to review whether the actions of state officials were "in violation of lawful procedure, [were] affected by an error of law or w[ere] arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see CPLR 7804 [b]). The essential nature of the claim is not necessarily defined by a party's characterization of the claim (see Buonanotte, supra at 1143; Madura v State of New York, 12 AD3d 759, 761 [3d Dept 2004], lv denied 4 NY3d 704 [2005]), but rests upon identification of the issues actually presented in the claim (see Sidoti v State of New York, 115 AD2d 202, 203-204 [3d Dept 1985]).
Here, claimant is seeking to hold the Committee and the Commission liable for failing to fully investigate and act upon claimant's complaints of judicial and attorney misconduct, a matter that falls within the discretion of those entities. A finding of liability upon such allegations necessarily requires review of whether their determinations to forego further action were arbitrary or an abuse of discretion (see CPLR 7803 [3]; see e.g. In re Doe v Commission on Judicial Conduct, 242 AD2d 409 [1st Dept 1998]). An award of money damages, if any, would be incidental to the determination of whether the Commission and the Committee acted properly, and could not be had without review of their actions or omissions, and thus, this Court is without subject matter jurisdiction over claims arising from the decision of the Committee and the Commission to forego further action into claimant's complaints.
In light of the foregoing, defendant's remaining arguments need not be addressed.
Accordingly it is
ORDERED that defendant's motion number M-92177 is GRANTED, and claim number 131209 is DISMISSED.
July 16, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 131209, filed March 28, 2018; (2) Notice of Motion to Dismiss, dated April 26, 2018; (3) Affirmation of Aaron J. Marcus, AAG, in Support of Motion to Dismiss, dated April 26, 2018; (4) Answer to Motion to Dismiss of Frank Maki, dated May 14, 2018, with Exhibits A-O.