Defendant's motion to dismiss based on immunity etc.
|Claimant short name:||ALAM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Mansoor Alam, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Lori L. Pack, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 12, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-E; Claimant's "Response to Defendant's Motion" with attachments and the filed Claim.
Defendant, the State of New York, has brought this pre-answer motion to dismiss the claim pursuant to CPLR 3211(a) (2), (4), (5) and (7) as well as Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim on the grounds that the claim is untimely, the Court lacks jurisdiction because the claim seeks review of a judicial decision, and claimant already had an adequate post-deprivation remedy. Claimant, Mansoor Alam opposes this motion.
On a motion to dismiss pursuant to CPLR 3211, the court is required to "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 ). The review entails "whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [quotation marks omitted]).
Claimant, Mansoor Alam, pro se, has filed and served a claim for deprivation of his rights pursuant to 42 USC § 1983 as well as federal constitutional violations. Specifically, he alleges, inter alia, that certain New York State Supreme Court Justices erred in their equitable distribution and maintenance orders in his Judgments of Divorce. Claimant contends that the Justices failed to rule on several issues and that their rulings were fundamentally flawed. He further states that he was discriminated against based upon his gender and that his wife was unjustly enriched. Claimant and his wife had been involved in divorce proceedings since 2012. On October 11, 2013, the Honorable Joseph Santorelli issued a Judgment of Divorce after a trial in which Mansoor Alam failed to appear. On appeal, the Appellate Division, Second Department, vacated the default and remanded the case as to all ancillary economic issues. On May 18, 2017, the Honorable David Reilly issued an Amended Judgment of Divorce after Remand. Claimant appealed this Judgment and on January 23, 2019, the Second Department affirmed the lower court's decision. On May 9, 2019, the Court of Appeals denied claimant leave to appeal the Second Department decision.
Defendant initially argues that the Court lacks jurisdiction because the claim is untimely and barred by the statue of limitations.
Court of Claims Act 10 (3) provides that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 ).
Claimant served a notice of intention to file a claim on October 15, 2019 which was not verified. On that same day, defendant rejected the Notice of Intention to File a Claim due to a lack of verification pursuant to CPLR 3022. Claimant thereafter filed and served a claim on December 24, 2019. Assuming that claimant's cause of action accrued on May 9, 2019, the date claimant's appeal to the Court of Appeals was denied, the unverified notice of intention and the claim were untimely. Claimant's failure to timely serve a verified notice of intention to file a claim or a verified claim deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 ; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001]).
Additionally, defendant argues that the Court lacks jurisdiction because the claim seeks review of the decisions made by New York State Supreme Court Justices in his divorce proceeding.
It is well settled that defendant is entitled to absolute immunity from suit for those governmental actions involving the exercise of discretion of a judicial or quasi-judicial nature (Arteaga v State of New York, 72 NY2d 212 ; Tarter v State of New York, 68 NY2d 511 ; Tango v Tulevech, 61 NY2d 34 ). "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 ). Judicial immunity extends not only to judges themselves but to those who act in a quasi-judicial capacity (Welch v State of New York, 203 AD2d 80 [1st Dept 1994]). After reviewing the claim, accepting the facts alleged as true and affording claimants the benefit of every possible favorable inference, this Court finds that the doctrine of judicial immunity applies in regard to the allegations raised against New York State Supreme Court Justice Joseph Santorelli and New York State Supreme Court Justice David Reilly as well as the judges involved in the appellate reviews of the proceeding. Consequently, even if his claim was timely, claimant has failed to state a valid cause of action in his claim based on the complained of actions of those individuals.
To the extent claimant is seeking to put forth causes of action asserting claims of New York State Constitutional violations, 42 USC §1983 violations and its underlying federal constitutional provisions, they are without merit.
The Court should not entertain a New York State Constitutional violation claim when an adequate alternative remedy is available to claimant (Martinez v City of Schenectady, 97 NY2d 78 ). Claimant had numerous alternative remedies available to him arising out of his claim to which he already availed himself.
Additionally, the Court does not have jurisdiction to hear claims brought under 42 USC § 1983 or its underlying federal constitutional provisions, since it is well settled that the State is not a "person" within the meaning of that section and cannot be liable in actions based on that section (Will v Michigan Dept. of State Police, 491 US 58 , Jett v Dallas Ind. School Dist., 491 US 701 ; Brown v State of New York, 89 NY2d 172 ).
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
May 12, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims