Gross v State of New York

[*1] Gross v State of New York 2006 NY Slip Op 50702(U) [11 Misc 3d 1084(A)] Decided on March 21, 2006 Ct Cl Midey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2006
Ct Cl

Sally J. Gross, Claimant,

against

State of New York, Defendant.



M-70368



Claimant's attorney:Sally J. Gross, Pro Se

Defendant's attorney:Hon. Eliot Spitzer, Attorney General By: Roger B. Williams, Esq.,

Assistant Attorney General Of Counsel

Nicholas V. Midey, J.

In her proposed claim, claimant seeks damages of four million dollars ($4,000,000.00) based upon the alleged "unlawful conduct of a state employee" (see Item 3, Proposed Claim, par. 2). Specifically, the alleged unlawful conduct refers to actions taken by New York State Supreme Court Justice John T. Buckley, who presided over a lawsuit in 1997 involving claimant and the Estates of her business partners, Leon Ancona and Albert Ancona.

In a decision filed with the Onondaga County Clerk on July 27, 1997, Justice Buckley found in favor of the Estates of Leon Ancona and Albert Ancona in three consolidated actions, following a non-jury trial (see Exhibit D to Items 1,2,3).

Claimant appealed, and this decision was unanimously affirmed by the Appellate Division, Fourth Department in 1998 (Sachs v Gross, 256 AD2d 1114).

According to claimant's submissions, she also attended a "settlement hearing" on July 2, 1999, resulting in her acceptance of a "small settlement", which apparently led to the dismissal of claimant's application seeking leave to appeal to the Court of Appeals.

In her proposed claim and other submissions, claimant contends that Justice Buckley was a friend of the husband of the executrix in the Estate of Leon Ancona, and that "each and every decision the prevailing Judge made ... was proof he decided to give his peer all the benefits of this case" (see Item 3, Proposed Claim, par. 2). Claimant alleges that Justice Buckley illegally distributed settlement funds, and that this is "new information" supporting her application for late claim relief.

In most situations, in order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is [*2]afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

In the submissions before the Court on this application, however, both parties have focused their attention primarily on the issue as to whether claimant has asserted a meritorious claim, and have made only passing reference, if any, to the other statutory factors set forth in § 10(6). Accordingly, this Court will first address this factor, because if the proposed claim lacks any apparent merit, it would be an exercise in futility to grant the application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and the Court must find, upon a consideration of the entire record (including the proposed claim and any affidavits or exhibits) that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In this application, claimant has submitted with her motion a copy of Justice Buckley's decision (see Exhibit D to Items 1,2,3) as well as a 31 page document (with Exhibits) titled "Disproving Judge Buckley's Decision" (see Exhibit C to Items 1,2,3). In this document, claimant contends that Justice Buckley was biased against claimant, and failed to consider the weight of the evidence in rendering his decision. Additionally, and as previously stated herein, claimant contends that she uncovered new information that Justice Buckley had illegally authorized distribution of funds which were the subject of the lawsuit.

No matter how this claim is characterized by claimant, the crux of the claim is her dissatisfaction with the decision made by Justice Buckley in 1997. The Court notes, as evidenced by the submissions, that claimant was represented by counsel throughout the proceedings before Justice Buckley, as well as during her appeal of his decision, which was unanimously affirmed by the Appellate Division, Fourth Department.

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 officers or employees while acting as such officers or employees" (Court of Claims Act § 9), it is well settled that actions taken by a State-employed judge are cloaked with absolute judicial immunity (see Swain v State of New York, 294 AD2d 956; Weiner v State of New York, 273 AD2d 95; Welch v State of New York, 203 AD2d 80; Harley v State of New York, 186 AD2d 324). The concept of judicial immunity exempts judges from liability for all acts done in the exercise of their judicial function (Murray v Brancato, 290 NY 52). The doctrine of judicial immunity is extremely broad, and extends to virtually all actions taken and decisions made in the performance of judicial functions. It is important to note that the doctrine of absolute judicial immunity is not overcome even by allegations of bad faith or malice (Wood v Incorporated Village of Patchogue of New York, 311 F Supp 2d 344; see Mireles v Waco, 502 US 9).

In this application, it is abundantly clear that claimant seeks permission to file a claim based upon actions taken by Justice Buckley within the context of his judicial function, and under these circumstances, the doctrine of judicial immunity shields the State from any liability to the claimant for such actions.

In sum, the Court of Claims is not the proper forum to address claimant's dissatisfaction with the determination made by Justice Buckley in Supreme Court, or any actions taken by [*3]Justice Buckley related to that judicial proceeding.

Based on the foregoing, the Court finds that claimant has failed to establish any apparent merit to her proposed claim. Since the doctrine of judicial immunity precludes any possibility of relief to claimant, it would be futile to permit the filing of this claim (see Savino v State of New York, supra; Prusack v State of New York, supra). Accordingly, claimant's application must be denied.

Therefore, it is

ORDERED, that Motion No. M-70368 is hereby DENIED.

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