New York State Court of Claims

New York State Court of Claims
TOJEK v. STATE OF NEW YORK, # 2021-053-527, Claim No. 134039, Motion No. M-96478

Synopsis

The State's motion to dismiss this pro se claim for lack of personal and subject matter jurisdiction is granted.  The Court of Claims does not have jurisdiction over the individually named defendants employed by the State. The Court of Claims is a court of limited jurisdiction and does not have jurisdiction over the claims alleging deprivation of U.S. Constitutional rights where claimant has an alternative forum and has already instituted a separate action in federal court and two actions in Supreme Court.

Case information

UID: 2021-053-527
Claimant(s): BRIDGETTE TOJEK
Claimant short name: TOJEK
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134039
Motion number(s): M-96478
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: BRIDGETTE TOJEK, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 23, 2021
City: Buffalo, New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Bridgette A. Tojek, a former Justice of the Town of Allen Justice Court, alleges in claim no. 134039 causes of action generally based on theories of "breach of confidence," malicious abuse of process, malpractice, negligent infliction of emotional distress, intentional infliction of emotional distress, gender discrimination, "conversion necessity," and violations of her rights pursuant to the First, Second, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution. Defendant moves to dismiss the claim, alleging that the Court does not have personal or subject matter jurisdiction as the claim was untimely served. Claimant failed to oppose defendant's motion.

Pursuant to Court of Claims Act 11 (b), the "claim shall state the time when and place where such claim arose, the nature of same [and] the items of damage or injuries claimed to have been sustained...." The purpose of the section 11 (b) pleading requirements is to provide the defendant with sufficient detail of the particulars of the claim to enable the defendant to investigate the claim and to ascertain its potential liability (Robin BB. v State of New York, 56 AD3d 932 [3d Dept 2008]). The Court of Claims Act does not require the defendant to ferret out or assemble information which section 11 (b) requires the claimant to provide (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). The failure to satisfy any of the pleading requirements of Court of Claims Act 11 (b) is a jurisdictional defect which requires dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277 [2007]; Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]).

Here, claimant alleges several causes of action in her claim (Defendant's Exhibit 1) and generally states that these causes of action arise out of "the Ungodly and UnAmerican Acts [sic] perpetrated and encouraged by the United Court Systems 8th District Administrative Justices and the Deputy Chief Administrative Judge," the Hon. Michael V. Coccoma, as well as by a Court Attorney Referee and a Court Analyst. Claimant's animus seems to be most pointedly directed at Deputy Chief Administrative Judge Michael V. Coccoma who allegedly "unleashed a cavalcade of horror" against her when he signed an unspecified Administrative Order. At best, the claim raises vague and conclusory allegations that lack content and fail to provide a coherent and detailed description of the particulars of any cause of action sufficient to enable the defendant to investigate the claim and ascertain the existence of and potential extent of its liability. Accordingly, the claim is jurisdictionally defective as it fails to satisfy the pleading requirements of Court of Claims Act 11 (b) and must be dismissed (Clark v State of New York, 165 AD3d 1371 [3d Dept 2018], lv denied 33 NY3d 905 [2019], rearg. denied 34 NY3d 973 [2019]).

The only date listed in the claim as an accrual date is August 27, 2019. Nothing in the claim indicates what occurred on that date or indicates the role of any of the individual Judges, Attorneys and/or Clerks identified in the claim in any unspecified event or events of August 27, 2019. In addition, the claim lists the place where the act or acts complained of occurred to be the Erie County Hall in Buffalo, New York and the Office of Court Administration in Albany, New York. Again, nothing in the claim indicates what act or acts were undertaken at these locations or identifies the role of any of the named Judges, Attorneys and/or Clerks in anything that occurred at these two locations.

The only act specifically detailed in the claim is an Administrative Order signed by Deputy Chief Administrative Judge, the Hon. Michael V. Coccoma. Nothing in the claim, however, identifies the Administrative Order by date or sets forth the subject matter of this Administrative Order. It is not until claimant served her bill of particulars on January 20, 2021, over a year after the claim was served, that claimant first identified the Administrative Order referred to in the claim. In her bill of particulars (Defendant's Exhibit 3), claimant refers to an Administrative Order signed on June 13, 2019 by the Deputy Administrative Judge for Courts Outside New York City, the Hon. Michael V. Coccoma (The Administrative Order is attached to claimant's bill of particulars as Exhibit D). This Administrative Order reassigned all judicial matters pending before the claimant as the Town Justice and ordered that she be assigned no new judicial matters. In addition, this Administrative Order prohibited the claimant from entering or remaining in the Town of Allen Court facility and ordered claimant to deliver her keys to the court facility. According to her bill of particulars, claimant also resigned her position as Town Justice on June 13, 2019, the same date the Administrative Order was signed.

By reading the claim together with claimant's bill of particulars, it can be inferred that the the Administrative Order complained of in the claim was the Administrative Order signed by Judge Coccoma on June 13, 2019, the same day that claimant resigned her position as Town Justice. As June 13, 2019 is the only date that can be connected to any act complained of in the claim, the Court concludes that June 13, 2019 is the proper accrual date. (1)

Pursuant to Court of Claims Act 10 (3), 10 (3-b) and 11 (a) (i), a claim to recover damages for injuries caused by the unintentional or intentional act of an officer or employee of the State must be filed and a copy served upon the Attorney General within 90 days after accrual of the claim, unless the claimant shall serve upon the Attorney General within the same 90 day time period, a notice of intention to file a claim, in which event, the claim shall be filed and served within two years of accrual of a negligent or unintentional act or within one year after an intentional act. Service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention to file a claim is received in the office of the Attorney General (Court of Claims Act 11 [a] [i]). Like the pleading requirements of Court of Claims Act 11 (b), the filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to serve the Attorney General within 90 days after accrual results in a lack of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Defendant argues that neither a notice of intention nor the claim was served within 90 days after accrual of the claim. These defenses were raised with particularity in defendant's answer.

According to the claim (Defendant's Exhibit 1), a notice of intention to file a claim was served on November 22, 2019. Attached to defendant's motion, however, is the affidavit of Debra L. Mantell, Legal Assistant II in the Albany, New York Office of the Attorney General (Defendant's Exhibit 4). According to her affidavit, Ms. Mantell conducted two separate searches of the Attorney General's digital case management system and found no record that the Attorney General had been served with a notice of intention by the claimant. The affidavit of service attached to the claim as filed indicates that claimant served the claim, an affidavit in support of an application pursuant to CPLR 1101 (d), an affidavit in support of a waiver of fees, and a redaction cover page on the Attorney General by mail on November 22, 2019. The affidavit of service attached to the claim makes no mention of service of a notice of intention.

To add to the confusion, buried among the allegations listed on page 3 of the claim is a notation that reads "I am intending this to extend my time to file my claim with the Court of Claims." At the top of this page, however, it is indicated that this page was meant as an expansion of paragraph 2 of the claim, which is the area where the acts or omissions from which the claim arises are listed. As the document served on the Attorney General's Office on November 26, 2019 is a preprinted form for the service of a claim and as it is captioned a claim, the Court will treat it as the claim. Regardless, whether it is treated as the claim or as a notice intention to file a claim, it had to be served upon the Attorney General within 90 days after accrual of the claim.

The claim was served by certified mail, return receipt requested, on November 26, 2019. By notice dated November 27, 2019, the Attorney General's Office rejected the claim as the verification was not signed by the claimant (Defendant's notice is attached to the claim as filed). The claim was re-served on December 6, 2019. Pursuant to Court of Claims Act 11 (c) (iii), an objection or defense based on the verification requirements are waived unless raised with particularity either by a motion to dismiss made before a responsive pleading is required, or in the responsive pleading. Here, defendant failed to raise its objection to the verification of the claim in a pre-answer motion or in its answer (Defendant's Exhibit 2). Accordingly, such an objection is waived, and the claim is deemed served as of November 26, 2019.

As previously noted, the Court has established June 13, 2019, when Judge Coccoma signed the Administrative Order relieving claimant of her duties as Town Justice, as the only possible accrual date. Pursuant to Court of Claims Act 10 (3), 10 (3-b) and 11 (a) (i), claimant then had 90 days within which to serve her claim. Here, the claim was served on November 26, 2019, more than 90 days after accrual of the claim. Accordingly, the claim is jurisdictionally defective and must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]).

Finally, this Court may address sua sponte a lack of subject matter jurisdiction at any time as it relates to the competence of the Court to consider the matter before it (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Erie Blvd. Hydropower, LP v State of New York, 90 AD3d 1292 [3d Dept 2011]). Thus, if the Court determines that it does not have subject matter jurisdiction, it may dismiss the claim.

The Court of Claims is a court of limited jurisdiction. It 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]). In addition, judges and court personnel, like those named in the claim, are cloaked with judicial immunity when, as here, they are performing their judicial functions (Mosher-Simons v County of Allegany, 99 NY2d 214 [2002]). The Court of Claims also does not have jurisdiction over claims based on an alleged deprivation of United States Constitutional rights such as those generally alleged in the claim, as the State is not a person pursuant to 42 USC 1983 (Brown v State of New York, 89 NY2d 172 [1996]; Jones v State of New York, 171 AD3d 1362 [3d Dept 2019]). Moreover, in the present case, recognition of a New York Constitutional claim would be neither necessary nor appropriate to ensure realization of any rights as the alleged wrongs could have been addressed in another forum (Williams v State of New York, 137 AD3d 1579 [4th Dept 2016]). In fact, claimant has a separate action in federal court and two other actions pending in State Supreme Court (see Claimant's bill of particulars).

Based on the foregoing, defendant's motion no. M-96478 is granted and claim no. 134039 is dismissed.

June 23, 2021

Buffalo, New York, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley swon to February 8, 2021, with annexed Exhibits 1-4.


1. The Court is aware that the claim refers to August 27, 2019 as the accrual date. Nothing in the claim, however, links any act or cause of action with this date. It is not until claimant served her bill of particulars that an Order signed by County Court Judge Thomas P. Brown is first mentioned. This Order, signed on June 13, 2019, suspended claimant's pistol permit and ordered the Sheriff of Allegany County to seize her pistol license and any handguns in her possession (see claimant's bill of particulars). A hearing regarding claimant's pistol permit was scheduled for August 27, 2019. On that date, a settlement was agreed to by which claimant would take a safety training course and after she delivered her certificate of completion, the Judge would reinstate the concealed carry portion of her permit. Claimant, after conferring with her attorney, agreed to the terms of the settlement on the record. As there is no mention of the suspension of a pistol permit in the claim or any mention of Judge Brown in the claim, claimant has failed to state a cause of action involving the suspension of her pistol permit, and the date of August 27, 2019 cannot be used as the accrual date as it has no relevance to any cause of action in the claim.