Pro se claimant's motion to amend claim is denied and the defendants' cross motion to dismiss the claim is granted and the claim is dismissed. Claimant's amended claim sought to review Family Court orders of support. Court of Claims has no authority to determine or review proceedings or rulings of other courts nor does it have jurisdiction over claims against the individually named defendants.
|Claimant short name:||ARCE|
|Footnote (claimant name) :|
|Defendant(s):||CHAUTAUQUA COUNTY FAMILY COURT, JOHN S. WIENCEK, MICHAEL F. GRIFFITH|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||ARMANDO ARCE, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 30, 2019|
|See also (multicaptioned case)|
Pro se claimant Armando Arce brings motion no. M-93775 for permission to amend claim no. 132855. Defendants cross move by motion no. CM-93948 to dismiss the claim and oppose claimant's motion to amend. Claimant opposes defendants' cross motion.
On March 16, 2011, an Order of Support was entered with the Chautauqua County Family Court with the consent of claimant Armando Arce and his ex-wife Kelly Rae Swanson regarding the support of their three children. On December 19, 2014, a subsequent Order of Support was entered with the consent of claimant and his ex-wife. This Order modified the child support provisions of the March 16, 2011 Order of Support. On January 18, 2017, claimant filed a modification petition to terminate his support obligation established by consent in the prior Order dated December 19, 2014. On May 10, 2017, Family Court denied claimant's motion to vacate the December 19, 2014 Order of Support and dismissed claimant's Modification Petition (see Decision and Findings of Fact entered May 10, 2017, attached to the Claim as part of Defendants' Exhibit B). On or about February 4, 2019, claimant filed another Petition for Modification of the December 19, 2014 Order of Support. At about the same time, claimant's ex-wife apparently filed a petition in the support proceedings in Family Court. Support Magistrate John Wiencek, through a series of orders in the support proceedings in Chautauqua County, Family Court: (1) dismissed without prejudice claimant's petition alleging that his ex-wife violated an existing order of support (See Order entered February 7, 2019 attached to the claim, part of Defendants' Exhibit B); (2) denied claimant's motion to vacate the ex-wife's petition (see Order entered February 28, 2019 attached to the claim); and (3) granted the ex-wife's motion to dismiss claimant's petition for failure of the claimant to establish a prima facie case and dismissed claimant's petition for modification of the order of support with prejudice (see second Order entered February 28, 2019 attached to the claim).
On March 4, 2019, claimant served upon the Office of the Attorney General, a notice of intention to file a claim against John S. Wiencek and the Chautauqua County Family Court (Defendants' Exhibit A). On March 29, 2019, claimant filed claim no. 132855. This claim was served on April 2, 2019 (Defendants' Exhibit B). The claim was brought pursuant to 42 USC § 1983 alleging a violation of his equal protection and due process rights as a father under the Fourteenth Amendment of the United States Constitution. On April 4, 2019, claimant filed by fax an amended claim. The amended claim was served on April 8, 2019 (Defendants' Exhibit C). The amended claim added Family Court Supervising Judge Michael F. Griffith as a defendant. Once again the amended claim asserted that it was brought pursuant to 42 USC § 1983 to redress the deprivation by defendants, under color of state law, of claimant's rights under the Constitution of the State of New York and the Fourteenth Amendment of the Constitution of the United States.
On April 11, 2019, claimant forwarded to the Court by mail an identical, albeit hard copy of the faxed amended claim which had been filed on April 4, 2019. The hard copy was then incorrectly filed as a supplemental claim. Thus, in reality, there is only a claim (Defendants' Exhibit B) which was replaced by the amended claim (Defendants' Exhibit C). By motion no. M-93775, claimant now moves to amend the amended claim by substituting the State of New York as the only named defendant, and defendants cross move by motion no. CM-93948 to dismiss the amended claim. The Court will address defendants' cross motion first as its decision on the cross motion may obviate the need to address claimant's motion.
Cross Motion No. CM-93948 to Dismiss the Amended Claim
Claimant filed claim no. 132855 on March 29, 2019 and served it on April 2, 2019 (Defendants' Exhibit B). Pursuant to the Uniform Rules for the Court of Claims § 206.7 (b), a party may amend his pleading once without leave of Court within forty (40) days after its service, or at any time before the period for responding to it expires, or within forty (40) days after service of a pleading responding to it. On April 8, 2019, claimant served an amended claim (Defendants' Exhibit C). In that the amended claim was served within forty (40) days of service of the original claim it was timely. Accordingly, the amended claim is now the operative claim and the subject of the motion to dismiss.
The thrust of claimant's amended claim appears to be his displeasure with the order or orders of Family Court entered in February 2019, that dismissed his most recent petition for modification of Order(s) of Support. The Court of Claims is a court of limited jurisdiction. It has jurisdiction only to hear and decide claims that involve money damages against the State of New York or certain public authorities specified by statute such as the New York State Thruway Authority (NY Const Art VI; Court of Claims Act § 9). The Court of Claims has no authority to determine or review proceedings or the rulings of other courts, including Family Court (Morrison-Allen v The State of New York, UID No. 2015-016-072 [Ct Cl, Marin, J., Nov. 23, 2015]); Kingston v Kings County Family Court, UID No. 2012-049-032 [Ct Cl, Weinstein, J., June 21, 2012]). Nor does the Court of Claims determine the outcome of hearings involving parental rights (Littles v New York State Family Court Judge Karen I. Lupuloff, UID No. 2016-016-015 [Ct Cl, Marin, J., March 7, 2016]).
In addition, the Court of Claims does not have jurisdiction over individually named defendants, even if they are employees of the State (Smith v State of New York, 72 AD2d 937 [4th Dept 1979]). Thus, any direct action against either defendant individually named in the amended claim would have to be dismissed. Moreover, even if the amended claim was amended to name the State of New York as the only defendant, the actions of Judge Griffith in allegedly responding to claimant's complaints about the actions of Family Court and its Support Magistrates and of Support Magistrate Weincek in dismissing a petition for modification of an Order of Support would be protected by the absolute immunity accorded to judicial and quasi-judicial activity (see Gaccione v The State of New York, UID No. 2013-028-538 [Ct Cl, Sise, acting P.J., Dec. 9, 2013]). Judicial immunity shields not only judges but other officials who have been delegated judicial or quasi-judicial functions (Tarter v State of New York, 68 NY2d 511 ). The immunity granted to these other officials protects them even when they are wrong or perform their duty inadequately (Mosher-Simons v County of Allegany, 99 NY2d 214 ).
Claimant argues that Support Magistrate Wiencek is not entitled to judicial immunity as he was acting without jurisdiction when he decided claimant's petition for modification of an order of support. Pursuant to Family Court Act § 439 (a), support magistrates are appointed to hear and determine support proceedings. This is exactly what Support Magistrate Wiencek was doing when he rendered his decision(s) on claimant's petition for modification of the Order(s) of Support. If claimant was unhappy with these decisions, he could have filed objections to the February 2019 Orders of Support Magistrate Wiencek pursuant to Family Court Act § 439 (e). In addition, he could have moved to vacate the earlier orders of support pursuant to CPLR 5015.(1) Any final order of a Support Magistrate could then be appealed pursuant to Article 11 of the Family Court Act. Claimant apparently did not pursue these available avenues of redress. Rather, he asks this Court to review various proceedings and hearings conducted in Family Court and declare the determinations therein to be unconstitutional and faulty. As indicated earlier, this Court does not have the authority to do so.
The only cause of action alleged in the amended claim is a civil rights action brought pursuant to 42 USC § 1983 to redress alleged Federal Constitutional and New York State Constitutional wrongs. Claims against the State based on alleged deprivations of United States Constitutional rights are beyond the jurisdiction of the Court of Claims and alleged civil rights claims against the State must be dismissed as the State is not a person pursuant to 42 USC § 1983 (Brown v State of New York, 89 NY2d 172 ; Jones v State of New York, 171 AD3d 1362 [3d Dept 2019]). Insofar as the amended claim can be construed as alleging a violation of the State Constitution, it too must fail. While Brown v State of New York establishes a limited remedy under the State Constitution, this remedy does not apply where an adequate remedy is available in an alternate forum (Jones v State of New York, supra at 1363; Martinez v City of Schenectady, 97 NY2d 78 ). Here, as previously discussed, claimant had numerous alternative legal remedies within Family Court and by an appellate court. In addition, claimant could seek to enforce his alleged constitutional rights in a federal civil rights lawsuit in federal court (Jones v State of New York, supra at 1363). In fact, claimant has brought a civil rights action in the United States District Court for the Western District of New York (see Defendants' Exhibit D). Thus, defendants' cross motion (CM-93948) to dismiss claimant's amended claim alleging violations of the New York State and Federal Constitutions must be granted and amended claim no. 132855 dismissed.
Motion No. M-93775 to Amend the Amended Claim
Claimant's amended claim no. 132855 is dismissed for lack of jurisdiction over the individually named defendants and for lack of subject matter jurisdiction over claimant's constitutional claims. Thus, claimant's attempt to amend the dismissed amended claim to add the State of New York as the only defendant and to add a new cause of action is an impermissible attempt to cure a jurisdictionally defective amended claim through another amendment (Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]).
Regardless, claimant's motion to amend the amended claim must be denied. Here, claimant seeks by his amendment to substitute the State of New York as the only named defendant and to add a cause of action for negligent supervision. CPLR 3025 (b) provides that a party may amend a pleading by leave of court. While leave to amend should be freely given, leave should not be given where the amendment is lacking in merit (Matter of Miller v Goord, 1 AD3d 647 [3d Dept 2003]). Here, claimant asserts in the cause of action portion of his proposed amended claim the words: "negligent supervision." There is no other reference to such a cause of action in the proposed amended claim and nothing to satisfy the specific pleading requirements of Court of Claims Act § 11 (b). Further, the State by paragraph 17 of the May 13, 2019 affirmation of Assistant Attorney General Carlton K. Brownell, III, Esq. attests that the judges and court personnel alluded to in the proposed amended claim were acting within the scope of their employment. Where, as here, the alleged personnel are within the scope of their employment, there can be no cause of action for negligent supervision (Passucci v Home Depot, Inc., 67 AD3d 1470 [4th Dept 2009]).
The remainder of the allegations in the proposed amended claim are constitutional in nature. As discussed before, the Court of Claims does not have jurisdiction over federal constitutional claims and this Court should not imply a State constitutional claim where, as here, alternate remedies are available to claimant. As the proposed claim is lacking in merit, claimant's motion no. M-93775 to amend must be denied (McKeever v The State of New York, UID No. 2018-045-046 [Ct Cl, Lopez-Summa, J., Oct. 12, 2018]).
Based on the foregoing, claimant's motion no. M-93775 to amend the amended claim is denied and defendants' cross motion to dismiss the amended claim is granted and amended claim no. 132855 is dismissed.
August 30, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Claimant's notice of motion no. M-93775 to amend the amended claim and supporting affidavit of Armando Arce sworn to April 9, 2019, with attached proposed amended claim;
2. Two identical letters dated April 18, 2019 from Armando Arce, with a copy of claimant's motion to amend attached to one of the copies;
3. Defendants' cross motion no. CM-93948 and affirmation of Assistant Attorney General Carlton K. Brownell III, Esq. dated May 13, 2019 in opposition to claimant's motion and in support of the cross motion, with annexed Exhibits A-D; and
4. Two copies of claimant's response to Defendant's Cross Motion and Motion to dismiss, both dated May 23, 2019.(2)
1. Claimant previously brought a motion to vacate the December 19, 2014 Order of Support which was denied by Support Magistrate Michael K. Bobseine in an Order entered on May 10, 2017 (a copy of Support Magistrate Bobseine's Decision and Findings of Fact and Order is annexed to the claim as part of Defendants' Exhibit B).
2. A copy of the Fourth Amended Complaint as filed in Federal Court is attached to both copies of claimant's response. The Fourth Amended Complaint as attached to the second copy of claimant's response has a completed paragraph VI (compare p. 6 of 8 of the attached copies of the Fourth Amended Complaint).