Opinion
April 24, 1981
David Rabinovici, claimant pro se. Robert Abrams, Attorney-General (Nancy Hornstein of counsel), for defendant.
The principal question presented is whether the State has waived its sovereign immunity with regard to a claim alleging that the State Division of Human Rights (Division) and the Human Rights Appeal Board (Appeal Board) violated claimant's constitutional rights during a proceeding to redress violations of section 296 Exec. of the Executive Law.
After an evidentiary hearing, the Division rendered a decision dismissing the complaint. That determination was affirmed by the Appeal Board and subsequently confirmed by the Appellate Division, First Department (Rabinovici v. State Human Rights Appeal Bd., 78 A.D.2d 597, mot. for lv. to app den 52 N.Y.2d 704). Within 90 days of the Appeal Board's decision, Mr. Rabinovici served and filed a notice of intention, and filed a claim within two years thereafter. (Court of Claims Act, § 10, subd. 3.)
The gravamen of the claim is that the Division failed to afford claimant procedural due process by unfairly limiting his right to cross-examine witnesses and refusing to order disclosure of relevant documents in the possession of claimant's former employer, the Hertz Corporation. The State has moved to dismiss the claim on the grounds, inter alia, that it is immune from suit for such acts.
The rule is well settled that "no public officer is responsible in a civil suit for a judicial determination, however erroneous or wrong it may be, or however malicious even the motive which produced it." (East Riv. Gas-Light Co. v. Donnelly, 93 N.Y. 557, 559.) As the court indicated in Rottkamp v. Young ( 21 A.D.2d 373, 375) there is a distinction between ministerial or nondiscretionary acts which may give rise to liability, and judicial or discretionary acts for which the public officer is immune from suit. (See 2 Harper and James, Torts, § 29.10, pp 1638-1646.) Thus, the State is not liable under its general waiver of immunity for the misconduct of a judicial officer on the theory of respondeat superior. (Instalment Dept. v. State of New York, 21 A.D.2d 211; see, also, Rossman v. State of New York, 40 A.D.2d 1046; Gross v. State of New York, 33 A.D.2d 868; Granger v. State of New York, 14 A.D.2d 645; Murph v. State of New York, 98 Misc.2d 324.)
The present case alleges tortious conduct by an administrative agency. As Judge CONWAY stated in Matter of Hecht v. Monaghan ( 307 N.Y. 461, 469): "When dealing with the public, the functions of an administrative agency fall into two broad categories, legislative and judicial. The Supreme Court of the United States drew the line of demarcation between those distinct functions in Prentis v. Atlantic Coast Line ( 211 U.S. 210, 226) where it said: `A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.'"
Subdivision 7 of section 295 Exec. of the Executive Law provides that the Division may hold hearings, provide for cross interrogatories, subpoena witnesses, compel their attendance, administer oaths, take testimony and require the production for examination of books or papers. It is in the performance of these functions that the Division is alleged to have violated claimant's constitutional rights. These are manifestly judicial or quasi-judicial functions for which the State is immune. (Pettorino v. Incorporated Vil. of Val. Stream, 63 A.D.2d 967; see, also, Ward Telecommunications Computer Servs. v. State of New York, 42 N.Y.2d 289, 290; Cunningham v. State of New York, 71 A.D.2d 181, mot. for rearg den 78 A.D.2d 717.)
We note further that by virtue of section 298 Exec. of the Executive Law, the Appellate Divisions of the various departments are given exclusive jurisdiction to review determinations of the Appeal Board. Having exercised his right to obtain such review — in this case unsuccessfully — claimant may not launch a collateral attack upon the proceedings of the Division or the Appeal Board through an action in the Court of Claims. (See Matter of Evans v. Monaghan, 306 N.Y. 312; Ashcraft Excavating Co. v. Clark, 79 A.D.2d 722; cf. Matter of Newsday, Inc. v. Ross, 80 A.D.2d 1.)
Accordingly, the State's motion to dismiss is granted.