Defendant's pre-answer motion to dismiss granted in part. Motion denied insofar as it sought to dismiss the claim for lack of subject matter jurisdiction and failure to state a claim on the ground that the Albany County Clerk was acting at a State officer for the purposes of this claim. Motion insofar as it sought to dismiss the claim based on the documentary evidence granted in part. Documentary evidence showed that the Albany County Clerk did not willfully refuse to process claimant's complaint but did not utterly refute claimant's allegation that the Albany County Clerk failed to process claimant's motions.
|Claimant(s):||JULIO NOVA (02-A-2345)|
|Claimant short name:||NOVA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JULIO NOVA, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Thomas J. Reilly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 10, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for the alleged violation of his due process and equal protection rights by the Albany County Clerk. Defendant makes this pre-answer motion to dismiss the claim based on documentary evidence, for lack of subject matter jurisdiction, and for failure to state a cause of action. Claimant has not opposed the motion.
The claim alleges that on or about January 4, 2019, claimant "commenced a civil right[s] action pursuant to 42 [USC] § 1983 in Albany County Courthouse, Supreme Court" (Claim No. 134129, ¶ 4). The claim alleges that throughout the course of the litigation, Albany County Clerk Bruce A. Hidley treated claimant, who is a prison inmate, "differently from others similarly situated with no rational basis for the difference" in violation of his state constitutional right to equal protection, and, as a result, "hindered [claimant's] ability to proceed" with his civil rights claim (id. at ¶ 2). The claim alleges that "for a period of four (4) mo[n]ths, right after the commencement of [c]laimant's State civil action, the [C]lerk of the Court, willfully, refused to process [c]laimant's complaint" and that the Albany County Clerk further "interfered with [the litigation] process by not processing [c]laimant's motions as required per Court's rules and regulations" (id. at ¶¶ 6-7). The claim alleges that as a result of the Albany County Clerk's actions and/or inaction, which were grossly negligent and in violation of the State's "own rules and regulations," claimant was denied due process, access to the courts, and equal protection, and his 42 [USC] § 1983 action was dismissed (see id. at ¶¶ 8-11). The claim further alleges that the Albany County Clerk's actions were "in violation of [the] Code of Conduct for Judicial Employees Policy" (id. at ¶ 12).
In support of the motion to dismiss, defendant argues first that the Court lacks subject matter jurisdiction over the claim and that the claim fails to state a cause of action because "[t]he Court of Claims only has jurisdiction over state employees and officials and does not have jurisdiction over county employees or local officials," and that this claim must be dismissed because the claim is brought "against the Albany County Clerk who is an elected county official and not a New York State employee" and "makes no allegations against any State employee or official" (Reilly Affirmation, ¶¶ 5-6).
"The Court of Claims is a court of limited jurisdiction and possesses only such jurisdiction as the Legislature expressly confers upon it" (Ivey v State of New York, 138 AD2d 962, 962 [4th Dept 1988]; see Allen v State of New York, 14 Misc 3d 1228[A], 2007 NY Slip Op 50202[U], *2 [Ct Cl 2007]). As relevant here, its subject matter jurisdiction is limited to claims "against the state . . . for the torts of its officers or employees while acting as such officers or employees" (Court of Claims Act § 9  [emphasis added]; see Borawski v Abulafia, 117 AD3d 662, 663 [2d Dept 2014] ["The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State"] [internal quotation marks omitted]). Where "the defendant is neither a State actor nor one of the State-related entities that may be sued in the Court of Claims, . . . dismissal of the claim for lack of subject matter jurisdiction" is properly granted (Bush v Stevenson Commons Assoc., LLP, Esqs., 156 AD3d 752, 753 [2d Dept 2017], lv dismissed 32 NY3d 1034 , rearg denied 32 NY3d 1089 ).
The Court of Appeals has declared that
"County Clerk[s] serve both the State and local governments (Olmstead v Meahl, 219 NY 270). As a clerk of the courts, the County Clerk is a State officer for whom the State is responsible. But when performing general duties the County Clerk acts as a local officer, and the local government must answer for actions taken"
(National Westminster Bank, USA v State of New York, 76 NY2d 507, 509 ). Thus, "[t]he question as to whether the Clerk should be considered a State or local officer in a suit challenging [the Clerk's] conduct depends upon the nature of the act which is the subject of suit" (id.). A County Clerk acts as a State officer over whom the Court of Claims has subject matter jurisdiction only insofar as the Clerk "performs acts that are in themselves a part of the judicial system" (id. [internal quotation marks omitted]).
Courts have held, for example, that a County Clerk acts as a State officer with respect to the docketing and expungement of judgments (see National Westminster Bank, USA v State of New York, 155 AD2d 261, 261 [1st Dept 1989], affd 76 NY2d 507 ; Haskins v State of New York, 145 AD2d 915, 915 [4th Dept 1988]), the recording of a lis pendens (see Ashland Equities Co. v Clerk of New York County, 110 AD2d 60, 61 [1st Dept 1985]), and the decision whether to return a claimant's filing fee (see Berrian v State of New York, UID No. 2006-015-114 [Ct Cl, Collins, J., Aug. 22, 2006]). Other actions, such as docketing mechanic's liens or keeping records of gun permits are "not sufficiently related to court functions" to render a County Clerk a State officer subject to the jurisdiction of the Court of Claims (J. Ellrott Excavating Contrs. v State of New York, 247 AD2d 705, 706 [3d Dept 1998]; see Colon v City of Rochester, et al., UID No. 2003-013-014 [Ct Cl, Patti, J., July 31, 2003]).
Here, the gravamen of the claim is that the Albany County Clerk violated claimant's constitutional rights - as well as State rules and regulations - in connection with claimant's 42 USC § 1983 litigation by refusing to process the complaint and claimant's motions. In the Court's view, the inaction by the Albany County Clerk as alleged in the claim is related is sufficiently related to court functions and, in fact, is inherently part of the judicial process, and defendant's motion to dismiss will not be granted on the grounds of lack of subject matter jurisdiction or failure to state a claim.
Turning to defendant's other ground for dismissal, defendant argues that the claim must be dismissed even if the Albany County Clerk qualifies as a State employee because the documentary evidence demonstrates that "the allegations in the claim are baseless" (Reilly Affirmation, ¶ 7). Defendant argues that an October 23, 2019 decision and order in Albany County Supreme Court by Acting Justice of the Supreme Court Richard M. Platkin in claimant's 42 USC § 1983 action demonstrates that it "was not dismissed due to some alleged malfeasance by the clerk's office but rather due to [claimant's] failure to properly serve the defendants," and that "[d]espite claimant's allegations that the clerk's office sabotaged his action by 'not processing [his] motions,['] Judge Platkin considered [claimant's] motion and denied [it]" (id.). Defendant further argues that Judge Platkin's decision and order demonstrates that "[c]laimant's allegation that the clerk's office refused to process his complaint is also meritless" inasmuch as it states that claimant "commenced a 42 USC § 1983 [action] on or about January 4, 2019" and that "[t]herefore, the clerk's office accepted the [s]ummons and [c]omplaint for filing" (id.). Defendant argues that the 42 USC § 1983 claim in Supreme Court was dismissed based upon "claimant's failure to serve it in accordance with the CPLR" (id.).
"When [a] motion to dismiss is premised upon documentary evidence, 'such motion may be appropriately granted only where the documentary evidence utterly refutes [claimant's] allegations, conclusively establishing a defense as a matter of law'" (Crepin v Fogarty, 59 AD3d 837, 838 [3d Dept 2009], quoting Goshen v Mutual LIfe Ins. Co. of N.Y., 98 NY2d 314, 326 ). "To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity" (Calhoun v Midrox Ins. Co., 165 AD3d 1450, 1450 [3d Dept 2018] [internal quotation marks omitted]).
Here, as noted above, defendant argues that Judge Platkin's October 23, 2019 decision and order dismissing claimant's 42 USC § 1983 claim constitutes documentary evidence conclusively refuting claimant's allegations that the Albany County Clerk violated claimant's rights by failing to process his complaint and motions in connection with the 42 USC § 1983 action in Supreme Court. In the decision and order, as relevant here, Judge Platkin writes that claimant "commenced [his] civil rights action pursuant to 42 USC § 1983 on or about January 4, 2019" (Reilly Affirmation, Exhibit B [Decision and Order of Hon. Richard M. Platkin, pg. 2]).(1) In the decision and order, Judge Platkin granted defendant's motion to dismiss the action for lack of personal jurisdiction on the ground that claimant failed to properly serve the individual defendants and thus did not acquire personal jurisdiction over them (see id. , pp. 3-4).
Judge Platkin also denied claimant's motion for an extension of time to respond to the defendant's motion to dismiss on the ground that it was based on "inadmissible proof" in the form of an unsworn affirmation, and he further observed that, to the extent claimant sought an extension of time to re-serve the defendants pursuant to CPLR 305 (c), 2001, and 2101 (f), claimant's motion was "supported by two inadmissible affirmations" and "without merit because [claimant's] failure to properly effect service cannot be cured pursuant to CPLR 305 (c), 2001 and/or 2101 (f)" (id. at pg. 4). Judge Platkin's decision and order also refers to claimant's prior "ex parte application under CPLR 308 (5) for alternate service," which was denied by decision and order dated April 18, 2019 (id. at pg. 2).
In the Court's view, Judge Platkin's October 23, 2019 decision and order conclusively establishes that the Albany County Clerk did not "willfully, refuse to process [c]laimant's complaint" for a period of four months following the commencement of the 42 USC § 1983 action in Supreme Court (Claim No. 134129, ¶ 7), but rather that the claim was properly filed with that court on or about January 4, 2019, and subsequently dismissed for lack of personal jurisdiction due to improper service. Accordingly, defendant's motion to dismiss the claim based on documentary evidence will be granted with respect to the allegations in the claim that the Albany County Clerk failed to properly process the complaint with respect to the 42 USC § 1983 action.
With respect to the allegation that the Albany County Clerk failed to "process [c]laimant's motions as required per Court's rules and regulations" (Claim No. 134129, ¶ 6), the claim does not indicate the number of motions claimant made or attempted to make during the pendency of the 42 USC § 1983 action, and the October 23, 2019 decision and order does not establish that the two motions discussed therein were the only motions that claimant made or attempted to make during the pendency of that action. Thus, the Court is constrained to conclude that the documentary evidence upon which defendant relies does not "utterly refute" claimant's allegation that the Albany County Clerk failed to process his motions, and the Court cannot grant defendant's motion to dismiss the claim with respect to that allegation.
Accordingly, it is
ORDERED, that defendant' s motion number M-95173 is GRANTED IN PART with respect to the allegation that the Albany County Clerk failed to process claimant's complaint in the civil rights action in Supreme Court; and it is further
ORDERED, that defendant's motion number M-95173 is otherwise DENIED.
July 10, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134129, filed December 11, 2019;
2. Notice of Motion to Dismiss, dated January 13, 2020;
3. Affirmation of Thomas J. Reilly, AAG, in Support of Defendant's Motion to Dismiss, dated January 13, 2020, with Exhibits A-B;
4. Affidavit of Service in Tara K. Matthews, sworn to January 14, 2020.
1. Indeed, the claim similarly alleges that claimant commenced his 42 USC § 1983 action in Albany County Supreme Court on or about January 4, 2019 (see Claim No. 134129, ¶ 14).