Opinion
# 2018-044-548 Claim No. 131173 Motion No. M-92192
08-23-2018
JOHN L. PETEREC-TOLINO v. THE STATE OF NEW YORK
JOHN L. PETEREC-TOLINO, pro se HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Paul F. Cagino, Assistant Attorney General
Synopsis
Claim dismissed on the bases of judicial immunity and respondeat superior (where the alleged actions taken by defendant's employees were not committed in furtherance of defendant's business or within the scope of employment).
Case information
| UID: | 2018-044-548 |
| Claimant(s): | JOHN L. PETEREC-TOLINO |
| Claimant short name: | PETEREC-TOLINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | As discussed in detail in the body of this Decision and Order (see infra), the caption of this claim is hereby amended to reflect the State of New York as the sole proper defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131173 |
| Motion number(s): | M-92192 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JOHN L. PETEREC-TOLINO, pro se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 23, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a self-represented litigant, filed this claim on March 22, 2018 to recover damages allegedly incurred as a result of judicial corruption and collusion involving Workers' Compensation Law Judge (WCLJ) Michael O'Connor and Senior WCLJ Madeline Pantzer. In lieu of answering, defendant State of New York (defendant) moves to dismiss the claim on the grounds that the Court lacks jurisdiction and that claimant has failed to state a cause of action. Claimant opposes the motion.
In addition to judicial corruption and collusion, claimant has also indicated that he has causes of action alleging discrimination (violation of the Americans with Disabilities Act), fraud, deception, misrepresentation, negligence, negligent supervision, personal injury, malicious prosecution, and theft of property.
Claimant filed responding papers on June 6, 2018, June 11, 2018, June 13, 2018, and July 9, 2018. However, because this motion was returnable on June 13, 2018, after claimant requested and received a substantial extension of time in which to respond, the Court will not consider the papers filed on July 9, 2018.
As an initial matter, the Court of Claims is a court of limited jurisdiction and has jurisdiction only over claims against the State of New York and a limited number of other entities specifically enumerated by statute (NY Const Art VI; Court of Claims Act § 9). It is charged with "exclusive jurisdiction over actions for money damages against the [S]tate," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; see NY Const, Art VI, § 9; Court of Claims Act § 9). The Court of Claims does not have jurisdiction over individual State employees (Court of Claims Act § 9). To the extent that claimant seeks recovery for conduct undertaken by WCLJ O'Connor and WCLJ Pantzer based upon the exercise of their duties in their official capacities as WCLJs, the State is the proper defendant. Further, because the State is the real party in interest, it is improper to name the Workers' Compensation Board (the Board) as a defendant. Accordingly, Claim No. 131173 is dismissed as against WCLJ O'Connor, WCLJ Pantzer, and the Board.
The Court notes that claimant filed an addendum to the claim on March 23, 2018. Claimant filed a "Second (2nd) Adendumm [sic], Attachment to March 20th Claim and March 21st First (1st) Adendum [sic], Attachment" on April 2, 2018, which purports to add the "Metropolitan Transportation Authority (MTA) and 'ESIS of MTA'" as defendants. In his response to the motion, claimant has acknowledged that MTA is a public benefit corporation and has withdrawn all claims against defendant with respect to the MTA. Although claimant did not specifically withdraw claims pertaining to ESIS of MTA, he has stated that ACE-USA of ESIS is his employer's workers' compensation insurance carrier. Because there is no indication that ESIS is a state agency or department, the Court of Claims has no jurisdiction over ESIS and any causes of action asserted against it are dismissed. Based upon the foregoing, the caption is hereby amended to reflect the State of New York as the sole proper defendant.
The Court notes that claimant failed to request permission before filing and serving the second addendum in violation of both CPLR 3025 (a) and the Uniform Rules of the Court of Claims (22 NYCRR) § 206.7 (b).
"Affidavit" of John L. Peterec-Tolino, filed June 6, 2018, in Opposition to Motion at 77. The Court notes that claimant has failed to properly execute this document by swearing to its contents before someone authorized to administer oaths, such as a notary public (see Siegel & Connors, NY Prac § 205 [6th ed 2018]). Nevertheless, the Court will refer to the document and discuss the allegations contained therein as if it was a valid affidavit.
Before addressing the merits of defendant's motion, the Court will set forth the history of this case as contained in both the claim and claimant's responding papers. In May 2016, claimant was apparently injured while at work and began receiving bi-weekly workers' compensation benefits. Sometime prior to May 2017, claimant's bi-weekly benefits were suddenly reduced. Claimant indicates that shortly thereafter, a workers' compensation hearing was held before a WCLJ (who claimant described as admirable and honest). At that time, the WCLJ ordered the insurance carrier to provide the monies which had been withheld and to continue paying the previously ordered benefits, without delay, until a further order was issued.
Although claimant does not provide the name of this WCLJ, it is clear that it was neither WCLJ O'Connor nor WCLJ Pantzer.
At that time, Ryan, Roach, and Ryan (the Ryan Law Firm), counsel for claimant's employer, inquired whether any third-party actions had been commenced due to claimant's accident. Claimant's counsel advised the Ryan Law Firm that a Notice of Claim pursuant to General Municipal Law § 50-e had been filed with the City of New York (the City) and that Wilson, Elses, Maskowitz, Edelman & Dickes (the Wilson Law Firm), counsel for the City, anticipated conducting a hearing pursuant to General Municipal Law § 50-h. Claimant states that the Ryan Law Firm thereafter provided the Wilson Law Firm with privileged information contained in claimant's workers' compensation file, specifically his Workers' Compensation C-3 Form (C-3 Form), without his authorization and in violation of Workers' Compensation Law § 110-a. Claimant asserts that the Wilson Law Firm then used the confidential information at two hearings conducted in accordance with General Municipal Law § 50-h (the 50-h Hearings). Thereafter, the Wilson Law Firm provided transcripts of the 50-h Hearings to the Ryan Law Firm, again without claimant's prior knowledge or authorization.
On November 20, 2017, WCLJ O'Connor held a hearing pursuant to Workers' Compensation Law § 114-a (the Section 114-a Hearing), apparently to determine whether claimant should be disqualified from receiving benefits and/or be responsible for paying a penalty for having allegedly made false representations in his Workers' Compensation claim. In this hearing, the Ryan Law Firm apparently introduced transcripts of the 50-h Hearings as evidence that claimant had failed to notify his employer on the C-3 Form that he had suffered a prior neck/cervical injury 10 years earlier. Claimant states that he explained in the Section 114-a Hearing that shortly after his injury, he informed the insurance company that he had a prior injury to his neck/cervical spine, and as a result, the insurance company did not authorize any treatments for that body part. Claimant indicates that WCLJ O'Connor reserved decision and permitted the parties to make post-trial submissions.
Claimant argues that because the C-3 Form was negligently designed, he misinterpreted the question and believed it was asking whether he had suffered a prior injury to the main body part which had been injured in the subject accident, i.e. his right shoulder.
Although no determination on the Section 114-a Hearing had been issued, the insurance company did not pay claimant's bi-weekly compensation benefit due on December 29, 2017. Notwithstanding the lack of a determination, a hearing pertaining to payments for medical treatment had been scheduled for January 8, 2018. Claimant's counsel was not available and contacted WCLJ O'Connor by e-mail to request an adjournment of the hearing. On January 8, 2018, Sherri Peterec, claimant's wife, appeared at the time scheduled for the hearing to verify that WCLJ O'Connor had received counsel's request for an adjournment. Peterec encountered an attorney employed by the Ryan Law Firm and inquired why claimant's payment due December 29, 2017 had been suspended, as no further order had been entered in the case. The attorney allegedly responded with the statement: "I know something you all don't know and your husband will never see a compensation check ever again." When Peterec and counsel from the Ryan Law Firm entered the hearing room, WCLJ O'Connor, who was appearing by video, acknowledged that he had received the e-mail and the hearing was postponed. However, Peterec addressed him regarding the comments made by opposing counsel. Counsel then allegedly interrupted to explain that her comments to Peterec concerned the Decision and Order that WCLJ O'Connor had filed earlier that day (January 8, 2018). Peterec purportedly observed that WCLJ O'Connor was taken aback by counsel's statement. However, when counsel reiterated that she had already received the Decision and Order, WCLJ O'Connor hesitated before agreeing that her statement was correct. Peterec then contacted both claimant's counsel and the Advocate for the Injured Worker, who indicated to her that no Decision and Order regarding the November 20, 2017 hearing had yet been e-filed. Claimant indicates that contrary to WCLJ O'Connor's representation, his Decision and Order was not e-filed until the afternoon of January 9, 2018. Although the Court does not have a copy of the Decision and Order, it is apparent that WCLJ O'Connor ruled against claimant and suspended/terminated claimant's compensation benefits, as claimant has represented that he has appealed the determination to the Board.
"Affidavit" of John L. Peterec-Tolino, filed June 6, 2018, in Opposition to Motion at 25 (internal quotation marks omitted).
The Court will now address the merits of defendant's motion to dismiss. On a motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the Court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). In addition to the claim, the Court may also consider any information contained in a responding affidavit in order to determine whether any cause of action has been stated (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).
Defendant argues that pursuant to the doctrine of judicial immunity, the State is not liable for the conduct of the WCLJs in carrying out their judicial functions, even though their actions may have been malicious or corrupt. Defendant further contends that to the extent the conduct of the WCLJs may have been criminal, such action would have been taken outside the scope of their judicial employment with the State and thus cannot form the basis of liability.
In response, claimant asserts that the WCLJs are not entitled to judicial immunity because their conduct was illegal, they had no jurisdiction to engage in a pay for play scheme or cover it up, and they were not acting as judges when they engaged in their wrongful conduct. However, claimant simultaneously and contradictorily asserts that because O'Connor and Pantzer were employed by defendant as WCLJs when they engaged in such conduct, defendant is nevertheless liable pursuant to the doctrine of respondeat superior.
Claimant asserts that WCLJ O'Connor inappropriately allowed the Ryan Law Firm to use the 50-h Hearing transcripts - obtained without his consent - in the Section 114-a Hearing. He asserts that such conduct, coupled with WCLJ O'Connor providing the Ryan Law Firm with the final determination of the Section 114-a Hearing on an ex parte basis prior to December 29, 2017, constitutes judicial collusion and corruption. Claimant alleges that as a result, he was wrongfully deprived of his Workers' Compensation benefits. Claimant indicates that he notified two Members of the State Assembly about WCLJ O'Connor's conduct and they requested that WCLJ Pantzer look into the matter. Claimant alleges that WCLJ Pantzer refused to investigate WCLJ O'Connor or replace him as the WCLJ assigned to claimant's case. Claimant further states that WCLJ Pantzer then covered-up WCLJ O'Connor's criminal conduct by wrongfully representing that his Decision and Order was e-filed on January 7, 2018, a Sunday. Claimant asserts that by doing so, WCLJ Pantzer is also guilty of colluding with the Ryan Law Firm and WCLJ O'Connor to deprive claimant of his benefits. Claimant also states that because WCLJ Pantzer's correspondence concerning her investigation into WCLJ O'Connor's conduct was provided to him through the mail, she committed the criminal act of mail fraud.
It is well-settled that the doctrine of judicial immunity bars claims against judges of the State for their judicial acts, as well as against the State - under the theory of respondeat superior - for any alleged errors made by its judges in their judicial capacity (see e.g. Donald v State of New York, 17 NY3d 389 [2011]; Mosher-Simons v County of Allegany, 99 NY2d 214 [2002]; Murray v Brancato, 290 NY 52 [1943]; Koeppe v City of Hudson, 276 App Div 443 [3d Dept 1950]). Judicial immunity also extends to those who act in a quasi-judicial capacity (Welch v State of New York, 203 AD2d 80 [1st Dept 1994]; Lockwood v State of New York, UID No. 2010-045-028 [Ct Cl, Lopez-Summa, J., Dec. 7, 2010]), as well as to non-judicial personnel who are integral parts of the judicial process, such as Court Clerks (see Mosher-Simons, 99 NY2d at 220; Hennessy v State of New York, UID No. 2008-015-504 [Ct Cl, Collins, J., May 22, 2008]). "Only two exceptions to the doctrine are recognized: when a Judge does not act as a Judge, or when a Judge, though acting under color of judicial authority, lacks any jurisdiction supporting judicial authority for the action taken" (Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000], lv denied 95 NY2d 759 [2000], cert denied 531 US 1158 [2001] [citations omitted] [the Court specifically held that the doctrine of judicial immunity was applicable to a cause of action alleging a violation of 42 USC § 1983]). "As to the latter exception, there is a clear distinction between acts performed in excess of jurisdiction[, which fall within the scope of immunity,] and acts performed in the clear absence of any jurisdiction over the subject matter, which do not" (Best v State of New York, 116 AD3d 1198, 1199 [3d Dept 2014] [internal quotation marks omitted]). The doctrine applies even when the conduct complained of is malicious or corrupt or is undertaken for retribution (Murray, 290 NY at 55 [1943]; see also Stump v Sparkman, 435 US 1099 [1978]; Montesano v State of New York, 11 AD3d 436 [2d Dept 2004]; Alvarez, 264 AD2d at 34).
In this claim, WCLJ O'Connor's allegedly wrongful conduct both in considering the 50-h Hearing transcripts and in purportedly having an ex parte discussion with and providing his determination to claimant's opposing counsel would clearly have been undertaken in his position as the assigned WCLJ. Moreover, as a WCLJ, O'Connor certainly had jurisdiction to conduct claimant's Section 114-a hearing and issue the Decision and Order (see 12 NYCRR 300.4). Contrary to claimant's argument, the doctrine of judicial immunity applies and defendant is not liable for WCLJ O'Connor's conduct.
With respect to WCLJ Pantzer, her allegedly wrongful conduct is that she refused to investigate complaints pertaining to the actions taken by WCLJ O'Connor in connection with the Section 114-a Hearing and that she provided false information pertaining to the filing date of his determination. While WCLJ Pantzer's conduct did not take place within the confines of an actual hearing or proceeding, it did occur within the scope of her supervisory or administrative duties as a Senior WCLJ. Judges, Court Officers and Court Clerks who exercise administrative functions such as investigating complaints, and transferring and/or rescheduling matters are also covered by absolute judicial immunity (see Rosenstein v State of New York, 37 AD3d 208, 209 [1st Dept 2007], which affd Rosenstein v State of New York, UID No. 2005-016-022 [Ct Cl, Marin, J., Mar. 3, 2005] [the Appellate Division, First Department specifically affirmed dismissal of the claimant's cause of action alleging that other judges "committed wrongdoing in not investigating his complaints about the allegedly corrupt [trial] judge and in not disciplining [the trial judge]"]). Accordingly, WCLJ Pantzer's conduct is also protected by the doctrine of judicial immunity and defendant is not liable for her actions as well.
Claimant correctly notes that criminal conduct of a judge is not covered by the doctrine of judicial immunity. Accordingly, the only allegations contained in this claim which are arguably not barred by judicial immunity are claimant's accusations that the WCLJs engaged in criminal conduct in the form of a pay for play scheme. However, "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Steinborn v Himmel, 9 AD3d 531, 532 [3d Dept 2004]). In other words, "the employer may be liable when the employee acts negligently or intentionally, as long as the tortious conduct is generally foreseeable and a natural incident of the employment" (State Farm Ins. Co. v Cent. Parking Sys., Inc., 18 AD3d 859, 859-860 [2d Dept 2005]). Even if the alleged criminal conduct in this case was generally foreseeable, it is not a natural incident of either WCLJ O'Connor's or WCLJ Pantzer's employment as WCLJs. Moreover, such conduct does not in any manner further defendant's business in the administration of the Board and the services which it provides, as a matter of law. To the extent that the alleged conduct was criminal in nature, defendant is not liable under the doctrine of respondeat superior. , Accordingly, the claim is dismissed as it fails to state any viable cause of action.
While any criminal conduct in the compensation matter may be referred to the appropriate District Attorney or Inspector General to conduct an investigation, the conduct does not form the basis for a civil claim for damages against the State (see Palmieri v State of New York, UID No. 2005-030-912 [Ct Cl, Scuccimarra, J., Mar. 25, 2005]).
Claimant's reliance on Jones v State of New York (33 NY2d 275 [1973]) for the proposition that judicial immunity is not absolute and the State may be held liable pursuant to respondeat superior is misplaced. Jones concerned the State's potential vicarious liability pursuant to the doctrine of respondeat superior for the intentional conduct of a State Trooper who, while acting within the scope of his employment, shot and killed a prison guard during the Attica Uprising. Jones pertains to neither the doctrine of judicial immunity nor the doctrine of respondeat superior with respect to criminal conduct.
To the extent that claimant is asserting a cause of action in negligence based upon the design of the C-3 Form (see n 7, supra), it too fails. In creating or implementing the C-3 Form, the Board was exercising its discretion during the performance of a governmental function. Claimant has failed to allege (nor do the facts support) the existence of a special duty owed to him by the Board (see generally Valez v City of New York, 18 NY3d 69 [2011]; Tango v Tulevech, 61 NY2d 34 [1983]). Accordingly, this cause of action is dismissed.
Moreover, to the extent that claimant is challenging the introduction of the 50-h Hearing transcripts and the Ryan Law Firm's alleged violation of Workers' Compensation Law § 110 in releasing confidential information, this Court has no jurisdiction to review the underlying agency determination (see e.g. Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]). Claimant's concerns in this regard may be appropriately addressed in his direct appeal.
Claimant also alleges that O'Connor's admission of the 50-h Hearing transcripts violated Civil Rights Law § 73. The Court notes that this statute applies to certain investigative agencies, not to the Board. In any event, it too could be addressed on appeal.
In conclusion, WCLJs O'Connor's and Pantzer's conduct occurred during the performance of their judicial functions and are protected by absolute judicial immunity. To the extent that any conduct was criminal in nature and not barred by judicial immunity, such conduct would not have been not in furtherance of defendant's business and the doctrine of respondeat superior is inapplicable. Even assuming the truth of all of claimant's allegations which form the basis of his various causes of action and affording him all favorable inferences, this claim fails to state any cognizable cause of action in the Court of Claims as a matter of law.
Accordingly, defendant's motion is granted and Claim No. 131173 is dismissed in its entirety.
August 23, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion: 1) Notice of Motion filed April 30, 2018; Affirmation of Paul F. Cagino, Assistant Attorney General, dated April 30, 2018, and attached exhibit. 2) "Affidavit" in Opposition of John L. Peterec-Tolino, filed June 6, 2018, and attached exhibits. 3) Claimant's Addendum filed June 11, 2018; Claimant's Letter to the Court dated June 12, 2018, and attachment. Filed Papers: Claim filed March 22, 2018; Supplemental Claim filed March 23, 2018; Supplemental Claim filed March 27, 2018.