Opinion
# 2019-038-600 Claim No. 133355 Motion No. M-94489
10-18-2019
BLAKE WINGATE v. STATE OF NEW YORK
BLAKE WINGATE, Pro se LETITIA JAMES, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss the claim on the grounds of absolute judicial immunity and untimeliness granted. Claimant failed to timely serve the claim on the Attorney General as required by Court of Claims Act § 10, and thus the Court lacks jurisdiction over the claim. In any event, the claim is barred by the doctrine of absolute judicial immunity.
Case information
| UID: | 2019-038-600 |
| Claimant(s): | BLAKE WINGATE |
| Claimant short name: | WINGATE |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133355 |
| Motion number(s): | M-94489 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | BLAKE WINGATE, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 18, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.
Decision
Claimant, an individual currently incarcerated in a State facility, filed this claim seeking compensation for the alleged failure of the Appellate Division, Third Department, to review the merits of his CPLR article 78 proceeding related to a prison disciplinary determination. Defendant makes this pre-answer motion to dismiss on the grounds that (1) the claim fails to state a cause of action because it is barred by the doctrine of judicial immunity and (2) the Court lacks jurisdiction over the claim because it was not timely served on the Attorney General. Claimant opposes the motion but does not address defendant's timeliness argument.
The claim alleges that the Appellate Division, Third Department, improperly reversed a Tier II prison disciplinary determination that found claimant guilty of violating a number of prison disciplinary rules without reviewing its merits (see Claim No. 133355, ¶ 2). The claim alleges that the Appellate Division should have considered the merits of the case after it was transferred from Albany County Supreme Court for a substantial evidence review even though the Attorney General conceded the case (see id.; see also Matter of Wingate v Venetozzi, 166 AD3d 1174, 1174 [3d Dept 2018] [dismissing the petition as moot after the determination had been administratively reversed]).
Although the claim alleged that the Appellate Division reversed a Tier III prison disciplinary "decision" (Claim No, 133355, ¶ 2), the Appellate Division's decision reveals that the challenged determination was actually a Tier II prison disciplinary determination (see Matter of Wingate v Venetozzi, 166 AD3d 1174, 1174 [3d Dept 2018]). Further, the Appellate Division did not reverse the determination inasmuch as it was administratively reversed before the court rendered its decision (see id.).
In support of its motion to dismiss, defendant argues that this claim is barred by the doctrine of judicial immunity and, in any event, the Court lacks jurisdiction over the claim because it was not served within 90 days of its accrual as required by Court of Claims Act § 10 (3) and (3-b) and thus is untimely (see Kemp Affirmation in Support of Motion to Dismiss, ¶¶ 4-5). Claimant opposes the motion in a lengthy, handwritten submission in which he appears to argue that the Attorney General's Office fraudulently transferred his CPLR article 78 proceeding from Supreme Court, Albany County to the Appellate Division, Third Department, for a substantial evidence review and that, in dismissing the petition without ruling on the merits, the court denied claimant "any review of the substance of the facts by any court" (Wingate Response to Notice and Affirmation to Dismiss, p. 8). Claimant argues that he has been denied a remedy (see id. at p. 5), and he contends that this pre-answer motion to dismiss should not be granted because "full discovery" will show that the $5 fine and $15 filing fee that were imposed constituted "a miscarriage of justice" (id. at p. 9).
Turning first to defendant's second ground for dismissal, as it implicates the jurisdiction of the Court to entertain the claim, defendant argues that claimant failed to timely serve the claim on the Attorney General inasmuch as the claim alleged an accrual date of November 8, 2018, and the claim was not served on the Attorney General until July 15, 2019 (see Kemp Affirmation, ¶ 5). Defendant argues that claimant was required to serve the claim on the Attorney General within 90 days pursuant to Court of Claims Act § 10 (3) and (3-b). Claimant does not address defendant's timeliness argument in his opposition papers.
Court of Claims Act § 10 provides time limits within which claims alleging various causes of action must be filed with the Clerk of the Court of Claims and served on the Attorney General (see Court of Claims Act §§ 10 [1] [appropriation], [2] [wrongful death], [3] & [3-a] [negligence or unintentional tort], [3-b] [intentional tort], [4] [breach of contract]). The statute further provides that "any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months" of its accrual (id. § 10 [4] [emphasis added]). A notice of intention to file a claim that is timely served on the Attorney General extends the time to file and serve the claim to two years (see id.). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Here, the claim alleges an accrual date of November 8, 2018, the date of the Appellate Division's decision (see Claim No. 133355, ¶ 4; see also Matter of Wingate, 166 AD3d 1174). Assuming that the claim sounds in negligence, as it alleges that the Appellate Division had a duty to review claimant's CPLR article 78 proceeding on the merits and failed to do so (see Claim No. 133355, ¶ 2), it would be untimely as it was served on the Attorney General on July 15, 2019, which was more than 90 days after the November 8, 2018 accrual date (see Court of Claims Act § 10 [3]). Even assuming that the claim fell within the catch-all provision of Court of Claims Act § 10 (4), under which claimant had six months from the November 8, 2018 accrual date to file and serve this claim, the claim would still be untimely, having been served more than eight months after its accrual (see Kemp Affirmation, ¶ 5, Exhibit A). Claimant has not argued that the claim was timely or otherwise demonstrated that he timely served a notice of intention that extended his time to file the claim (see Igwe v State of New York, 100 AD3d 830, 830 [2d Dept 2012], lv denied 21 NY3d 862 [2013]). Thus, the claim is untimely and must be dismissed.
Even if claimant had timely filed and served this claim, it would be dismissed on defendant's alternative ground for dismissal. "Even though the State has waived immunity from liability and has conferred jurisdiction upon the Court of Claims to entertain claims for damages caused by" the torts of its employees while acting in their official capacity, "it is well settled that actions taken by a State-employed judge are cloaked with absolute judicial immunity" (Gross v State of New York, 11 Misc 3d 1084[A], 2006 NY Slip Op 50702[U], *2 [Ct Cl 2006], affd 37 AD3d 1062 [4th Dept 2007], lv denied 8 NY3d 811 [2007], cert denied 552 US 889 [2007]). 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]; Best v State of New York, 116 AD3d 1198, 1199 [3d Dept 2014]; Harley v State of New York, 186 AD2d 324, 325 [3d Dept 1992], appeal dismissed 81 NY2d 781 [1993]). "Allegations of improper motives and even malicious wrongdoing are insufficient to circumvent absolute immunity" (Mertens v State of New York, 73 AD3d 1376, 1377 [3d Dept 2010], lv denied 15 NY3d 706 [2010]; see Zito v State of New York, 15 Misc 3d 1116[A], 2007 NY Slip Op 50704[U], *2 [Ct Cl 2007]).
Here, the claim does not allege that the justices of the Appellate Division, Third Department were acting outside of their official capacity when they dismissed as moot his CPLR article 78 petition, nor are there any allegations in the claim that the Appellate Division lacked jurisdiction over that proceeding. Thus, the claim must be dismissed on the ground of absolute judicial immunity (see Zito, 15 Misc 3d at *2 [dismissing claim against judges on the ground of judicial immunity where "(t)here (were) no factual allegations by the claimant that named defendants were acting as other than judges or judicial hearing officer, or that their courts lacked jurisdiction to hear the matters which underlie this claim"]; Maki v Current or Former Justices, et al., UID No. 2018-038-567 [Ct Cl, DeBow J., July 16, 2018]).
To the extent claimant's opposition to the instant motion can be read as arguing that the Appellate Division, Third Department lacked jurisdiction over the CPLR article 78 proceeding because it was improperly transferred to that court from Supreme Court, Albany County, it is undisputed that CPLR article 78 requires that a proceeding challenging a prison disciplinary determination must be transferred by the Supreme Court to the Appellate Division for a substantial evidence review (see CPLR 7804 [g]; see e.g. Matter of Watson v Annucci, 173 AD3d 1606, 1606 [4th Dept 2019]; Matter of McDonald v Annucci, 159 AD3d 1216, 1217 n 1 [3d Dept 2018]; Matter of Odom v Goord, 271 AD2d 792, 793 [3d Dept 2000], lv denied 95 NY2d 757 [2000]; Matter of Rodriguez v Goord, 260 AD2d 736, 737 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). In any event, despite claimant's apparent dissatisfaction with the Appellate Division's dismissal of his article 78 petition, it clear that the $5 surcharge claimant challenges was never taken out of his inmate account, and the court granted claimant's request for reimbursement of the $15 reduced filing fee (see Matter of Wingate v Venetozzi, 166 AD3d at 1174). Accordingly, contrary to claimant's contention that he has been denied a remedy, claimant "has received all the relief to which he is entitled" (see Matter of Ifill v Fischer, 79 AD3d 1322, 1322 [3d Dept 2010]).
Accordingly, it is
ORDERED, that defendant's motion number M-94489 is GRANTED, and claim number 133355 is DISMISSED.
October 18, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 133355, filed July 15, 2019; 2. Notice of Motion to Dismiss, dated August 23, 2019; 3. Affirmation of Douglas R. Kemp, AAG, in Support of Motion to Dismiss, dated August 23, 2019, with Exhibit A; 4. Response of Blake Wingate to Notice and Affirmation to Dismiss, undated, with unenumerated attachments; 5. Matter of Wingate v Venettozzi, 166 AD3d 1174 [3d Dept 2018]).