"Since the seventeenth century, the common law has immunized judges from damage claims arising out of their judicial acts" (Tucker v. Outwater, 118 F.3d 930,932 [2d Cir. 1997], cert. denied 522 U.S. 997 [1997]), a doctrine "embraced" (ibid.) by the highest court of the State of New York almost two centuries ago (Yates v. Lansing, 5 Johns. 282,291 [1810], affd. 9 Johns. 395 [1811]) and by the United States Supreme Court for the past 130 years (Bradley v. Fisher, 80 U.S. [13 Wall.] 335 [1871]). Indeed, as recognized by the high court in Bradley, it is "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself" (id., 80 U.S., at 347). For that reason, it has been and remains the law of this country that except when a judge acts in the absence of all jurisdiction, he is immune from suit for his actions (Bradley v. Fisher, supra; Alvarez v. Snyder, 264 AD2d 27,34 [1st Dept. 2000], lv. denied 95 NY2d 759 [2000], cert. denied sub nom. Diaz v. Snyder, 531 U.S. 1158 [2001]).

Notwithstanding that settled principle and the numerous reported decisions which have adhered to it, plaintiff at bar, an attorney and a Village Justice who may be said to be "at war" with defendant Nassau County Court Judge Donald DeRiggi, has instituted this lawsuit claiming, in general terms, that Judge DeRiggi, both acting alone and in conspiracy with co-defendant Ernest J. Peace, an attorney, defamed him. Because this lawsuit is entirely without support in fact and law, the complaint is dismissed to the extent that it asserts any claims against Judge DeRiggi either individually or in his capacity as a Judge of the Nassau County Court.

I. RELEVANT FACTUAL Background

The genesis of this action is a criminal proceeding, People v. John P. Daly (the Daly case), tried to a jury in Nassau County Court with Judge DeRiggi presiding, at which Daly was represented by Peace. Following Daly's conviction but prior to his sentencing, Peace was discharged as counsel by his client and plaintiff was retained to represent him in all further proceedings.

The first significant step taken by plaintiff was the filing of a motion for relief from Daly's conviction pursuant to CPL §330.30 (the 330 Motion). At the core of the 330 Motion was Daly's contention that Peace's representation of him was ineffective. That motion was denied by Judge DeRiggi in a decision and order rendered on November 15, 2002. In that decision Judge DeRiggi, inter alia, commented upon what he considered to be the "abusive language and baseless personal [*2]attacks [made by plaintiff] upon [] Peace" (Pernick Affirm., Exh.A, Decision and Order November 15, 2002, p.7). [1]

Shortly thereafter, plaintiff filed a second motion (the 330 Reargument Motion) seeking reargument and renewal of the 330 Motion. By decision and order issued December 6, 2002, Judge DeRiggi denied the 330 Reargument Motion.

At some time following the filing of the papers-in-chief in support of the 330 Motion, Peace learned of the motion. He then wrote to Judge DeRiggi on September 26, 2002 (the Peace Letter) requesting leniency for his former client. In that letter he acknowledged that he was aware of the statements made against him by plaintiff, and made his own unfavorable remarks in return.

Thereafter, Peace filed what he characterized as an "Amicus Curiae" affirmation dated November 21, 2002 (the Peace Affirmation) in response to the papers-in-chief and reply papers submitted by plaintiff on the 330 Motion. The Peace Affirmation, inter alia, defends Peace's representation in the Daly case and attacks the credibility of various claims made against him by plaintiff, Daly and Daly's wife.

Both before and after the filing of the 330 Motion and the 330 Reargument Motion (together hereinafter "the two Daly motions"), plaintiff appeared in other criminal matters before DeRiggi, whose recusal in those matters he repeatedly sought. In one particular case, involving a defendant named Nathan Powell (the Powell case), who is charged with homicide, plaintiff filed a CPLR Article 78 petition with the Appellate Division, Second Department, for a writ of prohibition, seeking relief including Judge DeRiggi's recusal. In his supporting papers in that proceeding (the Powell Article 78 proceeding) plaintiff recited his past encounters with Judge DeRiggi, who he described, inter alia, as "impervious to his inability to be fair and impartial", and whose conduct in the Powell case plaintiff characterized as "bizarre" (Pernick Affirm., Exh.D, par.11,12). In that same proceeding, plaintiff detailed the accusations made by him against Judge DeRiggi and by Judge DeRiggi against plaintiff, which are before the Commission on Judicial Conduct and the Disciplinary Committee, respectively.

In a decision and order issued on April 3, 2003, the Appellate Division dismissed the petition in the Powell Article 78 proceeding (Matter of Powell v. DeRiggi, 304 AD2d 506 [2d Dept. 2003]). An attempt to have that decision reviewed by the Court of Appeals was unsuccessful. Thus, Judge DeRiggi remained as the trial judge in the Powell case.

On April 28, 2003 Judge DeRiggi scheduled the trial of the Powell case to commence on May 27, 2003. Notably, it was on May 27, 2003 that plaintiff purchased an index number in this action and filed his complaint.

II. PROCEDURAL POSTURE

In his 27-paragraph complaint plaintiff asserts claims against Peace and Judge DeRiggi, the latter [*3]of whom is sued both individually and in his judicial capacity. [2] To the extent relevant, the complaint makes the following allegations against the Judge:

1. "At all material time hereinafter set forth, DeRiggi exceeded his judicial authority and jurisdiction and acted in concert with Peace's following acts of defamation and libel per se against Liotti." (Complaint, par. 4 [italics in original]).

2. "Heretofore and by written communications dated September 26, 2002 and November 21, 2002, respectively, Peace defamed Liotti in his profession and business and maliciously uttered, published and disseminated to third parties false, defamatory, malicious and libelous statements and attributed to Liotti libelous and scurrilous conduct by communication with Nancy Daly, the wife of one of Liotti's clients, and in an ex parte communication with the Nassau County Court, after Peace's legal services had been discontinued and he was no longer the attorney of record or counsel for a former client." (Complaint, par.5 [italics in original]).

3. "Upon information and belief, the written communications dated September 26, 2002 and November 21, 2002 were filed in the Office of the Clerk of the County Court, were not under seal and constitute a public record." (Complaint, par.6).

4. "By unauthorized written communication dated September 26, 2002 to Hon. Donald P. DeRiggi . . . Peace, without authority and after his legal representation of John P. Daly was terminated, wrote to the court and with respect to Liotti made the following disparaging remarks:

'If Mr. Liotti, better known around the courts of Nassau and Suffolk Counties as, 'Mr. Legend, in his own mind', has offended this Court by his incredible ravings, I know that you are too fine a Judge and too honorable a man to permit his meanspiritedness to effect your decision regarding the sentence of John Daly. I hope Mr. Liotti has attached to his written rantings . . . '." (Complaint, par.10).

5. "Subsequently, by affirmation under oath dated November 21, 2002 . . . Peace forwarded to DeRiggi an affirmation, although he was discharged and no longer representing John P. Daly and had not been asked by the court to submit an affirmation and had not been requested by John P. Daly or anyone acting on his behalf to submit an affirmation and had no standing to do so, wherein Peace took the opportunity to defame Liotti in the following manner:

(a)'5. Mr. Liotti fills his papers with venom in attacking me personally in the most vicious and inappropriate way, totally divorced from any connection to the instant motion. In addition, besides Mr. Liotti, John Daly and Nancy Daly were also loose regarding the truth in their affidavits. Untruths can be found in the original motion of Mr. Liotti, in his memorandum of law, in his reply affirmation and in the affidavits of John Daly and Nancy Daly.'

(b)'6. . . . Mr Liotti makes other criticisms which are unsound, and he makes suggestions which no honest attorney would ever make.' [*4]

(c) '11. I cannot believe that both John Daly and Nancy Daly, as well as Mr. Liotti do not tell the truth when they claim that I was distracted during the trial by my wife's illness.' " (Complaint, par.11).

6. "That the aforesaid false, defamatory, malicious and libelous statements and/or utterances consisted of Peace stating that Liotti was 'a liar', that Liotti was 'borderline insane', that Liotti was 'vicious', that Liotti was 'not trustworthy', that he was 'not believable' and that he was and constitutes 'a danger' to John Daly, Liotti's client." (Complaint, par.14).

7. "The statements and/or utterances so communicated were and are false, defamatory, malicious, reckless, careless and constitute defamation and libel per se." (Complaint, par.15 [italics in original].

8. "At all material times hereinafter set forth, DeRiggi acted, ultra vires, in an extra-judical manner and outside the scope of his judicial authority and jurisdiction when he, upon information and belief, solicited and subsequently permitted, allowed and did not reject Peace's affirmation [] to be submitted to the court and filed as a public record with the Clerk of the County Court." (Complaint, par.20 [italics in original]).

9. "Upon information and belief, at all material times hereinafter set forth, DeRiggi in excess of his judicial jurisdiction and authority informed and advised Peace that Liotti had made and filed a motion on behalf of John P. Daly [] to set aside the verdict in the Daly case on the constitutional and statutory grounds that Peace's representation of Daly was ineffective and deprived Daly of effective legal representation." (Complaint, par.21 [italics in original]).

10. "DeRiggi allowed Peace to communicate with him ex parte and failed to return to Mr. Peace the unauthorized paperwork and communications or to reject them or to order Peace to cease and desist from making them." (Complaint, par.22 [italics in original]).

11. "Upon information and belief, at all material times herein set forth, DeRiggi read and considered Peace's affirmation submitted in connection with and, in reality, in opposition to the motion by Liotti and Daly to set aside the verdict rendered in the Daly case and as part of that improper and unauthorized communication set forth libelous utterances and defamatory material against Liotti." (Complaint, par.23 [italics in original]).

12. "Upon information and belief, at all material times set forth herein, DeRiggi acted in a manner inconsistent with his judicial authority and permitted and allowed the Peace defamatory affirmation to be filed as a public record." (Complaint, par.24).

13. "Peace's unauthorized communication with DeRiggi was improper and violated the Attorneys' Code of Professional Conduct and DeRiggi, by accepting, permitting and considering Peace's affirmation, aided, abetted, coalesced and further perpetuated Peace's defamatory and libelous utterances against Liotti." (Complaint, par.25). [*5]

Based upon these claims, the complaint seeks compensatory damages from Judge DeRiggi in the sum of $5,000,000.00 and "an order [] either expunging from the records and file in the [Daly case] . . . any and all communications from [] Peace [] to [Judge] DeRiggi or, in the alternative, sealing from the public all of the aforesaid documents except for [] Daly's use of the same for purposes of his pending appeal" (Complaint, p.7).

In response to the complaint, Judge DeRiggi, represented by the New York State Attorney General, filed the instant motion, seeking dismissal of the complaint and the imposition of sanctions against plaintiff for commencing and continuing the prosecution of what Judge DeRiggi argues is a frivolous lawsuit.

After this action was assigned to this Court [3] , a conference was scheduled to be held on August 13, 2003. Because Peace failed to appear as required, a default was entered against him on the issue of liability, with damages to be determined later. [4] At the conference, the Court also established a schedule for the filing of the remaining papers on this motion. With all papers having been submitted, the motion is now before the Court for decision. [5]

III. DISMISSAL

The first branch of Judge DeRiggi's motion asks that the complaint be dismissed. This application is premised on two grounds, one involving the pleading requirements in a defamation action and the other being a claim of immunity from suit.

A. INSUFFICIENT PLEADING

CPLR 3016(a) provides that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally". Relying upon this heightened pleading requirement, Judge DeRiggi moves to dismiss what he interprets as the separate defamation claim asserted against him in paragraph 23 of the complaint (Paragraph 23). It is the Judge's position that dismissal is warranted because the particular defamatory words allegedly used by him have not been stated in the complaint.

As set forth above, Paragraph 23 asserts that Judge DeRiggi "read and considered [the] Peace[] [A]ffirmation] . . . and as part of that improper and unauthorized communication set forth libelous utterances and defamatory material against Liotti." Because of the inartful drafting of this paragraph, it cannot be determined whether it is intended to assert an act in furtherance of the Judge's alleged conspiracy to defame plaintiff or to state a separate cause of action for defamation against the Judge. If the latter was intended, it is also unclear whether plaintiff means that the Judge defamed him with certain unspecified statements in the decisions on the two Daly motions (the two Daly motion decisions), or that by accepting the Peace Letter and the Peace Affirmation (hereinafter "the two Peace writings") and permitting them to be filed with the Nassau County Clerk, the Judge somehow further published the allegedly defamatory statements that those two writings contained. Nevertheless, for the purpose of this branch of Judge DeRiggi's motion, the [*6]Court shall accept his view that a separate cause of action for defamation has been asserted.

Insofar as the complaint is intended to put forth a claim that Judge DeRiggi has liability for the allegedly defamatory statements contained in the two Peace writings, it does not run afoul of CPLR 3016(a) for two reasons. First, in paragraphs 10 and 11 of the complaint plaintiff has quoted certain words from the two Peace writings which he alleges are defamatory. Second, the complaint specifically incorporates the two Peace writings and includes them as exhibits. Even if the statement of the words in paragraphs 10 and 11 did not suffice, which it does (see, Chime v. Sicuranza, 221 AD2d 401,402 [2d Dept. 1995][Defamation claim satisfied CPLR 3016[a] where plaintiff quoted the statements which impugned his professional ability]), the inclusion of the two Peace writings is sufficient to satisfy CPLR 3016(a) (Sassower v. Finnerty, 96 AD2d 585,587 [2d Dept. 1983], appeal dismissed 61 NY2d 756 [1984] ["[A]ttaching the articles containing the allegedly defamatory material to the amended complaint as an exhibit is sufficient to satisfy the pleading with particularity requirement of CPLR 3016"]). [6]

A contrary conclusion follows if the complaint is considered to state a defamation claim against the Judge for statements contained in either or both of the two Daly motion decisions. Plaintiff has neither identified specific language used by Judge DeRiggi in either decision which he contends is defamatory nor has included either of the two Daly motion decisions as an exhibit to the complaint. Thus, if plaintiff intended to assert a cause of action against Judge DeRiggi for defaming him in either of the two Daly motion decisions, such a cause of action is dismissed for failing to meet the pleading requirements of CPLR 3016(a) (see, Sirianni v. Rafaloff, 284 AD2d 447,448 [2d Dept. 2001][Dismissal of defamation claim warranted where plaintiffs failed to plead the alleged defamatory statements with specificity]). [7]

B. JUDICIAL IMMUNITY

As analyzed by Judge DeRiggi, plaintiff's complaint sets forth four distinct claims, these being:

1. Disclosure of Public Information Claim: i.e, that the Judge "exce[eded] [] his judicial jurisdiction and authority" by informing Peace of the filing of the 330 Motion;

2. Solicitation Claim: i.e., that Judge DeRiggi solicited the Peace Affirmation and permitted it to be filed with the Nassau County Clerk;

3. Ex Parte Communication Claim: i.e, that Judge DeRiggi permitted Peace to have ex parte communications with him by accepting the two Peace writings, not returning them to Peace and not directing Peace to "cease and desist from making them"; and

4. Defamation Claim: i.e., that either by conspiring with Peace in the publication of the Peace writings or by statements made in one or both of the two Daly motion decisions the Judge defamed plaintiff. [*7]

The second and core argument on Judge DeRiggi's motion is that all of these claims must be dismissed because, assuming for the purposes of this motion that he committed any of these acts, he is absolutely immune from suit. [8]

Although support exists in the complaint for it to be viewed in the light offered by Judge DeRiggi, so too may the complaint be considered merely to state a single claim that Judge DeRiggi conspired with Peace to defame plaintiff by providing the latter with a forum in which to attack plaintiff, that is, by informing Peace of the pending motion and permitting him to send the two Peace writings to the Judge, either for consideration in deciding the two Daly motions or for subsequent disclosure to the public by filing them with the Nassau County Clerk. In the end, whether the complaint is viewed as asserting four separate claims or a single cause of action for conspiracy to defame plaintiff is of no moment because it is subject to the same analysis under the judicial immunity defense.

1. THE GENERAL STANDARD

For almost 200 years the courts of this State have recognized and adhered to the doctrine of judicial immunity. As explained by the Court in Yates v. Lansing:

The doctrine which holds a judge exempt from a civil suit or indictment, for any act done, or omitted to be done by him, sitting as judge, has a deep root in the common law. It is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions in the English courts, amidst every change of policy, and through every revolution of their government. A short view of the cases will teach us to admire the wisdom of our forefathers, and to revere a principle on which rests the independence of the administration of justice. (Yates v. Lansing, supra, 5 Johns., at 291 [emphasis added]).

Under this doctrine, judges are immune from suit for damages "for acts committed within their judicial jurisdiction" (Pierson v. Ray, 386 U.S. 547,553-554 [1967]). This immunity provides its protection "even when the judge is accused of acting maliciously and corruptly" (id., 386 U.S., at 554) or in "bad faith" (Tucker v. Outwater, supra, 118 F.3d, at 932).

Just as the existence of this immunity is well-settled (see, Pierson v. Ray, supra, 386 U.S., at 554), so too is it established that there are only two recognized exceptions to the doctrine (Mireles v. Waco, 502 U.S. 9,11 [1991]). These are: "when a Judge does not act as a Judge, or when a Judge, though acting under color of judicial authority, lacks any jurisdiction supporting judicial authority for the action taken" (Alvarez v. Snyder, supra, 264 AD2d, at 34, citing Mireles v. Waco, supra, 502 U.S., at 11-12).

In this case, as he must, plaintiff concedes the general application of the judicial immunity doctrine. Nevertheless, he maintains that his lawsuit may proceed because, in his view, Judge DeRiggi's challenged actions fall within the scope of each of the two exceptions. Without any doubt, plaintiff is wrong. [*8]

2. JUDICIAL ACT

In the leading case on the issue of whether a judge has acted in a judicial capacity, the Supreme Court explained the applicable standard as follows:

"The relevant cases demonstrate that the factors determining whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." (Stump v. Sparkman, 435 U.S. 349,362 [1978], rehearing denied 436 U.S. 951 [1978][emphasis added]).

Although the Supreme Court "has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity", it has observed that cases addressing this issue "suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform" (Forrester v. White, 484 U.S. 219,227 [1988]).

Relying upon the Stump v. Sparkman standard, plaintiff's first attempt to avoid the bar of judicial immunity is his claim that:

" . . . he knows of [no] rule of law or any rule of practice that permits or authorizes a judge to solicit, accept and consider an affidavit from a former attorney for a party in opposition to the client's application for certain relief." (Pl. Mem. in Opp., p.7). [9]

Based upon this assertion, he further maintains that:

"In the case at bar the actions taken by Judge DeRiggi in permitting the ex parte communications from an attorney no longer representing a party and no longer the attorney of record, is not a function normally performed by the Judge and certainly not one expected by the Dalys. This was not an act in error. It was not an act in excess of his authority. It was an act, although apparently having the cloak of being judicial in nature was taken in the complete absence of all jurisdiction." (Ibid. [italics in original]).

As is apparent, his position is two-fold: first, that because there is no specific statute or court rule that permits a judge to accept papers from a former attorney, any judge who does so is not performing a function normally performed by a judge; and second, that in this specific instance the act complained of was not within the expectations of the affected parties. While, as seen above, plaintiff has correctly stated the relevant considerations, he has erroneously applied them.

a. JUDICIAL FUNCTION

It is certainly true that there are many decisions made by judges which "are often crucial to the efficient operation of [the courts]", but do not "give rise to absolute immunity from liability in [*9]damages" (Forrester v. White, supra, 484 U.S., at 229 [Personnel decision by Judge discharging probation officer was not protected by doctrine of judicial immunity]). Nevertheless, it is well- recognized that: "In the continuum of judicial proceedings some judicial acts require extensive exercise of a judge's decision-making skills and others do not-yet all such acts make up the judicial function regardless of their isolated importance" (Thompson v. Duke, 882 F.2d 1180,1184 [7th Cir. 1989], cert. denied 495 U.S. 929 [1990][Scheduling of hearing is "[i]n the judicial context, . . . part of the routine procedure in any litigated matter"]). Consequently, "the fact that the activity is routine or requires no adjudicatory skill renders that activity no less a judicial function" (id., 882 F.2d, at 1184).

In the context of the Daly case, plaintiff filed two motions seeking relief from his client's conviction. There being no suggestion by plaintiff that it was not a judicial function for Judge DeRiggi to have considered all of the motion papers that were properly before him, the initial question to be determined is whether the Peace Letter, and more significantly, the Peace Affirmation, were not properly before the Judge because they were submitted by an attorney who was no longer representing the party asking for relief on those motions.

The papers that must be submitted on a motion made pursuant to CPL §330.30 are identified in CPL §330.40. These include the criminal defendant's notice of motion and supporting affidavits and the prosecution's answering papers (CPL §330.40[2]). Although there is no specific provision in CPL §330.40 for the submission of reply papers [10] , plaintiff did file such papers in his client's behalf in further support of the 330 Motion. No one could credibly deny that Judge DeRiggi properly considered those reply papers, since a court has the discretion to determine whether to accept late papers, sur- reply papers or papers otherwise not in conformance with controlling statutes or rules, and the authority to generally regulate the motion practice before it (see, e.g., Held v. Kaufman, 238 AD2d 546,548 [2d Dept. 1997], affd. as modified 91 NY2d 425 [1998] ["[P]laintiff was not prejudiced by the defendants' raising of new theories in their reply papers, as the motion was adjourned, with the court's permission, to give the plaintiff an opportunity to respond, and the plaintiff in fact fully opposed the defendants' amplified application in a lengthy sur-reply"]; Matter of Kushaqua Estates, Inc. v. Bonded Concrete, Inc., 215 AD2d 993,994 [3d Dept. 1995]["Supreme Court could properly refuse to consider respondents' surreply which not only was submitted without permission from the court, but was not restricted to the issues raised in petitioner's reply affidavit and contained new factual information"]; Ritt v. Lenox Hill Hospital, 182 AD2d 560,562 [1st Dept. 1992][Condemning use of reply papers to introduce new legal arguments not offered in papers-in-chief]; Rosenman Colin Freund Lewis & Cohen v. Edelman, 165 AD2d 533,537 [1st Dept. 1991][Attorney sanctioned for engaging in "unheard of" practice of supplementing deficient motion papers]; Gaeta v. Home Box Office, 169 Misc 2d 500,508 [N.Y.C. Civ. Ct. 1996][Motion court refused to consider issues raised for first time in reply papers and "spate of unauthorized, piecemeal sur-reply letters"]).

Just as Judge DeRiggi acted within his judicial role by accepting the reply papers submitted by plaintiff on the 330 Motion, so too did he act in that capacity when he determined that he would [*10]accept papers from Daly's former attorney. The Peace Affirmation could have been accepted as an "amicus curiae" paper, which is how it was designated when submitted by Peace, because even in the absence of a specific rule governing applications for amicus curiae status (see, 22 NYCRR §500.11[e][Court of Appeals rule for granting leave to appear as amicus curiae]; see also, 22 NYCRR §670.11[a][Amicus curiae rule promulgated by Appellate Division, Second Department]), a court has the discretion to permit a non-party to an action to be heard on a motion as a "friend of the court" (New York State Senator Kruger v. Bloomberg, 2003 WL 21815083 [Sup. Ct. NY Co. 2003]). The authority of a judge to grant such status has long been recognized (Kemp v. Rubin, 187 Misc. 707,709 [Sup. Ct. Queens Co. 1946][Custom of permitting amicus curiae to appear " 'is immemorial in the English law' " and "is recognized generally throughout the United States"]), and a decision to hear from an amicus curiae differs in no respect from a decision to accept or reject a reply or a sur-reply paper from a party, both being aspects of the "judicial function" with respect to rendering determinations on motions, just as scheduling determinations are (see, Thompson v. Duke, supra, 882 F.2d, at 1184). [11] Contrary to plaintiff's position, that there may be no promulgated rule or enacted statute specifically authorizing a nisi prius court to grant amicus curiae status is of absolutely no consequence, since this authority is recognized by the common-law (see, ibid. ["Acts carried out in a judicial capacity, whether based on statute, rule or inherent authority, are absolutely protected from damages liability"]).

b. PLAINTIFF'S EXPECTATIONS

Plaintiff also seeks to defeat Judge DeRiggi's claim of judicial immunity on the second of the factors cited in Stump v. Sparkman. In this regard, he contends that Judge DeRiggi is not immune from this lawsuit because permitting ex parte communications from an attorney who was no longer involved in the criminal proceeding was "certainly not [] expected by the Dalys" (Pl. Mem. in Opp., p.7). Even if true, this assertion misses the mark.

As explained by the Supreme Court in Stump v. Sparkman, in determining whether a Judge has performed a judicial function, the second consideration is "the expectations of the parties". Contrary to plaintiff's view that this factor involves the subjective expectations of the parties with respect to the particular act challenged in their lawsuit, as made clear by the high court what is meant is "whether [the parties] dealt with the judge in his judicial capacity" (Stump v. Sparkman, supra, 435 U.S., at 362).

It is evident from a reading of plaintiff's complaint that nowhere is it alleged that plaintiff "dealt with" Judge DeRiggi in any capacity other than that of judge. [12] While the allegations of the complaint may be read as stating that Daly, and plaintiff, did not expect the Judge to permit a former attorney to be heard on the 330 Motion, all of the "dealings" with the Judge recited in the complaint relate solely to the motion practice before him. Given that fact, the complaint fails to support plaintiff's position that the Judge acted outside of his judicial function. [13]

3. ABSENCE OF JURISDICTION [*11]

As an alternative argument, plaintiff maintains that judicial immunity does not attach in this matter because Judge DeRiggi's actions of soliciting, accepting and considering the Peace Affirmation, "although apparently having the cloak of being judicial in nature [were] taken in the complete absence of all jurisdiction" (Pl. Mem. in Opp., p.7). Like his effort to bring his case within the first exception to the judicial immunity doctrine, so too is his claim that Judge DeRiggi acted in the absence of all jurisdiction without support as a matter of law.

It is settled law "that 'judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction' " (Stump v. Sparkman, supra, 435 U.S., at 355-356, quoting Bradley v. Fisher, supra, 80 U.S., at 351). In determining whether a judge has acted without any jurisdiction, so as to be civilly liable for his actions, this Court is guided by the Supreme Court as follows:

"A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend." (Bradley v. Fisher, supra, 80 U.S., at 351-352 [emphasis added]).

When analyzing whether a Judge has acted in the clear absence of all jurisdiction under this standard, "the scope of the judge's jurisdiction must be construed broadly" (Stump v. Sparkman, supra, 435 U.S., at 356).

As set forth in plaintiff's complaint, the 330 Motion was filed by him in his representation of Daly following the latter's conviction at trial. It is undisputed by plaintiff that jurisdiction to rule upon that motion was conferred upon Judge DeRiggi by CPL §330.30. Thus, plaintiff's complaint can avoid dismissal only if any of the acts allegedly committed by Judge DeRiggi with respect to the Peace Affirmation, i.e., solicitation, acceptance or consideration of that paper, was an act for which jurisdiction was "clearly absent". The mere statement of this question demonstrates that its answer is contrary to plaintiff's position.

The management of motion practice by a Judge is, at times, provided for by statute. For example, as discussed above, CPL §330.40(2) specifically directs the filing of papers-in-chief and opposition affidavits on a motion for relief from a judgment of conviction, while CPLR 2214(b) addresses the situations in which reply papers may be filed on motions in general. Even where a specific statute or court rule does not control, however, a court hearing a motion is not without authority to determine what papers it may accept and consider from parties and non-parties.

As has been recognized, every court of record is "vested with inherent powers, which are neither [*12]derived from nor dependent upon express statutory authority, and which permit such courts to do all things reasonably necessary for the administration of justice within the scope of their jurisdiction" (Gabrelian v. Gabrelian, 108 AD2d 445,448 [2d Dept. 1985], appeal dismissed 66 NY2d 741 [1985], overruled in part by A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1,5-6 [1985]; Alvarez v. Snyder, supra, 264 AD2d, at 35). [14] These include, inter alia, the power to: control its calendar through the granting of adjournments (Matter of Carlton Associates v. Bayne, 191 Misc 2d 54,57 [Sup. Ct. Kings Co. 2002]) and stays (Lang v. Pataki, 176 Misc 2d 676,689-690 [Sup. Ct. NY Co. 1998]; dismiss a complaint filed by a claimant who brings suits solely for harassment purposes (Jermosen v. State, 178 AD2d 810,811 [3d Dept. 1991]; and summon witnesses and compel their attendance (People v. Green, 170 Misc 2d 519,522 [Sup. Ct. Bx. Co. 1996]). It is because of the "ancient and undisputed law that courts have an inherent power over the control of their calendars, and the disposition of business before them" (see, Plachte v. Bancroft Inc., 3 AD2d 437,438 [1st Dept. 1957]), that courts may determine whether reply papers (Ritt v. Lenox Hill Hospital, supra, 182 AD2d, at 562), sur-reply papers (Matter of Kushaqua Estates, Inc. v. Bonded Concrete, Inc., supra, 215 AD2d, at 994) or supplemental papers (Rosenman Colin Freund Lewis & Cohen v. Edelman, supra, 165 AD2d, at 537) may be filed on a motion. A court's inherent powers are similarly its source of authority to grant permission to a non-party to submit papers as an amicus curiae (see, New York State Senator Kruger v. Bloomberg, supra, 2003 WL 21815083; see also, Matter of Foster Care Status of George "Joey" S., 194 AD2d 328,329 [1st Dept. 1993][Recognizing that Family Court had discretion to call foster parents as witnesses at hearing to appear amicus curiae, where they were denied leave to intervene as parties]). Thus, plaintiff's conclusory cry that Judge DeRiggi lacked all jurisdiction to solicit, accept and consider the Peace Affirmation runs counter to long-standing legal principles and is wholly without foundation.

Indeed, as the Judge correctly argues, rather than being a valid attack upon his jurisdiction, plaintiff's claim is in fact merely that the Judge committed a procedural error by accepting that paper without notice to the parties to the Daly case or on a purely ex parte basis. While, if true, the matter might be the subject of an inquiry by the Commission on Judicial Conduct (see, Judicial Canon 3(B)(6) [Prohibiting Judge from initiating, permitting or considering ex parte communications with certain exceptions]), such a claim cannot survive in the face of the assertion of the immunity defense, since it is also settled law that "[a] judge will not be deprived of immunity because the action he took was in error" (Stump v. Sparkman, supra, 435 U.S., at 356).

What plaintiff ignores in his papers opposing this dismissal motion is the central consideration that what determines "whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him" (ibid.). When Judge DeRiggi accepted the Peace Affirmation, he most certainly had jurisdiction over the 330 Motion and the issues raised in the supporting papers, including the question of whether Peace provided legally adequate representation to Daly in the latter's criminal case. Even if his solicitation, acceptance and consideration of the Peace Affirmation was the most glaring and injurious error ever made by a Judge, rather than being an act done in the clear absence of [*13]jurisdiction, it would amount to no more than a procedural mistake which cannot support a civil action (see, id., 435 U.S., at 359 ["A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors"]). [15] Because plaintiff's complaint alleges no claims which amount to more than the commission of a procedural error by Judge DeRiggi, it fails to state any cause of action when weighed against the immunity to which the Judge is entitled.

4. PROPORTIONALITY

In a final effort to defeat this motion, plaintiff asserts that even if this Court concludes that Judge DeRiggi had a jurisdictional basis to solicit, accept and consider the Peace Affirmation, "to accept an unauthorized and scathing affidavit from Mr. Daly's former defense counsel and to use that affidavit in formulating an order is so disproportionate and fundamentally unfair that it constitutes an ultra vires act not entitled to immunity" (Pl. Mem. in Opp., p.5 [italics in original]). This argument is premised upon a portion of the court's analysis in Alvarez v. Snyder (supra).

In Alvarez, Justice Leslie Crocker Snyder, who was to preside at a criminal trial arising from an investigation of three violent gangs, was informed that certain of the criminal defendants planned to obstruct the prosecution of the case by intimidating, and in some instances, murdering, witnesses who would be testifying against them. Responding to that threat to the proceedings, Justice Snyder imposed various restrictions upon some of the incarcerated defendants, including limiting their rights to receive visitors and communicate by telephone and letter with persons other than their attorneys. Subsequently, Justice Snyder was sued by some of the criminal defendants upon several causes of action, including a civil rights claim under 42 USC §1983.

Addressing the question of immunity from suit, the Appellate Division stated:

"In the present case, when reliable information alerted the court presiding over the criminal trial of detainees regarding their direct interference with the administration of that trial, the court's adjudicative duties included the exercise of its inherent power to ensure that the interference end, providing a jurisdictional basis for the court's orders." (Supra, 264 AD2d, at 36 [emphasis added]).

Based upon the court's determination that Justice Snyder "acted on a judicial jurisdictional basis", thereby entitling her to "immunity protecting her from personal liability as a consequence of those judicial actions" (ibid.), the Appellate Division affirmed the dismissal of the complaint.

Because the jurisdictional underpinning for Justice Snyder's actions was the court's inherent power, the Appellate Division observed that:

"The measures taken, of course, must be rationally related to the nature of the interference as a minimal condition for the viability of any jurisdiction. Since we find a jurisdictional basis for the [*14]orders, the question of whether the measures are also proportionate in every regard, which plaintiffs contend is a core issue, becomes academic, unless the disparity between the problem addressed and the remedy employed is so stark, and so unbridgeable, that the court cannot rationally be said to have validly exercised inherent power." (Ibid.).

In the case before this Court, plaintiff seizes upon this language to argue that Judge DeRiggi's challenged actions are not immune from suit because his acceptance and consideration of the Peace Affirmation was so disproportionate as to render his actions ultra vires and lacking in jurisdiction. Under the circumstances presented, this claim is frivolous.

As made clear by the reviewing court in Alvarez, in order for a court to be found to have invoked an inherent power without any legal basis to do so, there must be a "stark" and "unbridgeable" disparity between the remedy employed by that court and the problem that it sought to address. Here, Judge DeRiggi was presented with a legal challenge to a criminal conviction pursuant to a procedure authorized by statute. Although there was some statutory control of the papers which could have been accepted and considered by him in rendering a decision on the 330 Motion (see, CPL §330.40[2]), Judge DeRiggi properly relied upon his inherent authority to determine whether to accept and consider the Peace Affirmation in reaching his decision on the merits of that motion [16] . His exercise of that inherent authority would be invalid, thereby depriving him of a jurisdictional basis for his actions, only if the lack of proportion between the problem he faced and the remedy he employed was so great as to render irrational his invocation of that inherent authority (see, Alvarez v. Snyder, supra, 264 AD2d, at 36). Because, in this case, Judge DeRiggi did no more than, in effect, use his well-recognized authority to grant amicus curiae status to Peace in order to resolve a legal issue concerning Peace's prior representation of Daly, there was no disparity in the first instance between the nature and magnitude of the problem on the one hand and the remedy employed on the other. Consequently, as in Alvarez, "[t]he measures taken by [Judge DeRiggi] clearly do not overstep the immunity conferred on [him] in this action seeking personal damages" (ibid.). [17]

IV. Conclusion

"A long established doctrine, judicial immunity is necessary because 'principled and fearless decision-making' will be compromised if a judge 'fear[s] that unsatisfied litigants may hound him with litigation' " (Vasile v. Dean Witter Reynolds Inc., 20 F.Supp.2d 465,488-489 [E.D.NY 1998], affd. 205 F.3d 1327 [2d Cir. 2000], quoting Pierson v. Ray, supra, 386 U.S., at 554). It is a doctrine whose "goal is not to benefit the Judge, but to protect the public on whose benefit the Judge acts; that benefit is to secure a Judge's ability to act independently without fear of personal consequences" (Alvarez v. Snyder, supra, 264 AD2d, at 34).

In this case, plaintiff, an experienced attorney and Village Justice, was the subject of critical comment by a trial judge in a decision upon a motion filed by him on behalf of a client, and was attacked in a paper submitted to the trial judge by the former attorney whose representation was the subject of that motion. Reduced to its simplest terms, the cause of action asserted by plaintiff [*15]against that trial judge and the other lawyer is no more than this: that Judge DeRiggi should not have accepted and considered the affirmation submitted by Peace which contained certain allegedly defamatory words, and should not have allowed that paper to be filed with the Nassau County Clerk. Upon recognizing that this alone was his claim, and that it was, beyond all credible dispute, barred by an immunity doctrine whose foundations predate the birth of this republic [18] , plaintiff should not have filed this lawsuit against the Judge. [19] Because he did, despite the absence of any claim that is not defeated by the doctrine of judicial immunity, his complaint cannot survive Judge DeRiggi's motion to dismiss pursuant to CPLR 3211[a][7] (see, Alvarez v. Snyder, supra; see also, DeMarco v. County of Nassau, 18 AD2d 999 [2d Dept. 1963]["Under the rules applicable to a judge's immunity from civil liability, the defendants' motion for summary judgment was properly granted" because there were "no allegations of fact to support the conclusory allegation that the plaintiff's detention 'was wholly unlawful and without justification' and to show that such detention gave rise to a cause of action for false imprisonment"]). [20]

ACCORDINGLY, it is

ORDERED that plaintiff's complaint is dismissed to the extent that it asserts any cause of action against defendant Hon. Donald DeRiggi, either individually or in his capacity as a Nassau County Court Judge.

The foregoing shall constitute the decision and order of the Court.

FootNotes:

[1]

More specifically, Judge DeRiggi wrote:"While clients are certainly entitled to the best efforts of their counsel in their representation of them, the language of this motion goes far beyond zealous advocacy. The papers filed and affirmed by Thomas Liotti, Esq. contain nothing but abusive language and baseless personal attacks upon Ernest Peace, Esq. The perceived errors alleged by counsel could have been presented in a professional manner without resort to vicious and demeaning language toward trial counsel. Perhaps one of the most egregrious attacks taken by Mr. Liotti is on page 7 of his reply affirmation in which he states 'Mr. Peace interrupted himself with a Freudian slip in saying to the jurors: 'Please excuse me while I take a drink'.['] The only implication is an accusation of drunkenness which is and was a complete falsehood and possibly should be the subject of future litigation. This is unacceptable conduct on the part of an attorney and should not and will not be tolerated by this Court." (Pernick Affirm., Exh.A, Decision and Order November 15, 2002, p.7-8).

[2]

Although his last paragraph is number 26, there are two paragraphs numbered 25 in the [*16]complaint.

[3]

Although this case is venued in Nassau County, it was assigned to the undersigned Justice, who sits in Westchester County, by order of Deputy Chief Administrative Judge Joseph J. Traficanti, Jr., following the issuance of an order by Nassau County Administrative Judge Edward G. McCabe which sought the appointment of a Judge from outside of Nassau County to hear the case. By letter dated August 4, 2003 to Judge Traficanti plaintiff objected to what he understood to be the "transfer" of this case to Westchester County and to the undersigned Justice in particular. His letter was referred by Judge Traficanti to Judge McCabe, who wrote to plaintiff on August 11, 2003 to inform him that the action has not been transferred but remains in Nassau County as a case assigned to this Justice. Judge McCabe also advised plaintiff that if he had "[a]ny motion to recuse on legal grounds", it would have to be made directly to this Justice (Judge McCabe Letter, August 11, 2003 [emphasis in original]). Because no application for recusal has been made before the undersigned, this motion has been considered on its merits.

[4]

That default renders moot the default judgment motion filed by plaintiff against Peace and Peace's cross-motion to dismiss the complaint, neither of which shall be addressed by this Court. Moreover, in view of the dismissal of the complaint against Judge DeRiggi, plaintiff is now directed to serve and file his Note of Issue seeking the scheduling of an inquest against Peace.

[5]

The following papers numbered 1 to 7, with their attached exhibits, were read on this motion:PAPERS NUMBEREDNotice of Motion/Affirmation/ Memorandum of Law 1-3Affirmation/Memorandum of Law in Opposition 4-5Reply Affirmation Memorandum of Law 6-7

[6]

In his reply papers, Judge DeRiggi argues that dismissal on this ground should be granted on default because "[n]othing in plaintiff's opposing papers responds to this branch of the motion" (DeRiggi Reply Mem., p.10). Although plaintiff has, in fact, failed to address the CPLR 3016(a) attack, since this defendant has also sought dismissal for failure to state a cause of action, in the exercise of its discretion the Court has considered the sufficiency of the complaint on this challenge as part of its obligation under CPLR 3211(a)(7) to determine whether "plaintiff can succeed upon any reasonable view of the facts stated" (People v. New York City Transit Authority, 59 NY2d 343,348 [1983]).

[7] [*17]

Assuming, arguendo, that plaintiff intended Paragraph 23 to state a claim against Judge DeRiggi for defaming him in either of the two Daly motion decisions and had satisfied the requirements of CPLR 3016(a), dismissal for failure to state a cause of action would be required because even if a decision is written with knowledge of its falsity and with actual intent to injure a party or his counsel, "as a matter of public policy, [the judge] would be exempt from liability for composing it" (Sassower v. Finnerty, supra, 96 AD2d, at 587, citing Murray v. Brancato, 290 NY 52,56 [1943]).

[8]

With respect to the Disclosure of Public Information Claim, the Judge also argues that dismissal is required for failure to state a cause of action because "a true statement concerning a judicial proceeding is absolutely privileged" (DeRiggi Mem., p.3). Assuming that the complaint is intended to state such a claim, the Court agrees with Judge DeRiggi that it fails to state a legally sufficient cause of action because the statement merely acknowledged that a motion seeking relief pursuant to CPL Article 330 had been filed. Rather than the truth of the statement being the controlling consideration, however, it is the making of the statement in the course of the ongoing post-conviction proceedings in the Daly case that bars its use as a basis of a lawsuit. Since the statement, if in fact made by Judge DeRiggi, was "pertinent" to those proceedings in the sense that it merely informed Daly's former counsel of the existence of a motion questioning the adequacy of his prior representation, even if Peace was so informed by the Judge, as a matter of law no liability exists (see, Martirano v. Frost, 25 NY2d 505,507 [1969][A statement made in open court in the course of a judicial proceeding "is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation"]; see also, Impallomeni v. Meiselman, Farber, Packman & Eberz, P. C., 272 AD2d 579,580 [2d Dept. 2000], lv. denied 95 NY2d 764 [2000][Defamation action based upon statement in letter to Judge concerning, inter alia, conduct of court stenographer, dismissed because plaintiffs would not finalize settlement of action until their concerns had been voiced, thereby rendering statement "pertinent to the proceeding" and privileged]).

[9]

In plaintiff's Memorandum of Law the word "no" substituted above by this Court appears as "any". Because the sentence makes no sense as it appears in the memorandum, the Court has corrected it to reflect what must have been plaintiff's intent.

[10]

The CPLR, however, does provide for the filing of reply papers in certain circumstances (see, CPLR 2214[b][Permitting reply affidavits to be served at least one day before the motion return date if the notice of motion is served at least twelve days before the return date]).

[11] [*18]

A similar judicial function is that performed by a court which exercises its discretion to consider a paper improperly submitted in the form of an affirmation when an affidavit is required. CPLR 2106 provides that: "The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit." Under this rule, a paper submitted in the form of an affirmation by a party who is an attorney may properly be given no consideration by a motion court (see, Matter of Sassower v. Greenspan, Kanarek, Jaffe & Funk, 121 AD2d 549 [2d Dept. 1986]). Because plaintiff at bar submitted an affirmation, and not an affidavit, in opposition to this motion, this Court would have acted within its authority in refusing to consider that paper in ruling upon the issues raised on this motion. However, because that defect has not been raised by Judge DeRiggi, pursuant to its authority to control the motion practice on matters over which the Court has jurisdiction, it has overlooked plaintiff's violation of CPLR 2106 (see, Sam v. Town of Rotterdam, 248 AD2d 850,851 [3d Dept. 1998], lv. denied 92 NY2d 804 [1998][Plaintiffs waived objection to technical form of defendant's paper when they responded to merits without raising defendant's failure to comply with CPLR 2106]).

[12]

Because this branch of the motion seeks dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the Court has accepted as true each factual allegation set forth in the complaint to determine whether, considering the application of the doctrine of judicial immunity, "plaintiff is entitled to a recovery upon any reasonable view of the stated facts" (see, 219 Broadway Corp. v. Alexander's, Inc., 46 NY2d 506,509 [1979]). Although this Court has accepted plaintiff's factual claims, but not his legal conclusions (Mayer v. Sanders, 264 AD2d 827,828 [2d Dept. 1999]["The facts pleaded are presumed to be true and are to be accorded every favorable inference, although bare legal conclusions . . . are not entitled to any such consideration"]), as true, it notes that Judge DeRiggi "strenuously denies" plaintiff's claims (DeRiggi Reply Mem., p.2).

[13]

Insofar as plaintiff seeks to rely upon the expectation of "the Dalys" (Pl. Mem. in Opp., p.7), that effort is wholly unavailing. As is beyond dispute from the language employed by the Supreme Court in Stump v. Sparkman, it is the "expectation" of the suing plaintiff that must be considered. Thus, the sole question on this aspect of the immunity defense is whether plaintiff himself dealt with the Judge in a manner other than as a Judge.

[14]

County Court is a court of record (Judiciary Law §2[7]). [*19]

[15]

Just how far a Judge would have to stray to be found to have acted in excess of all jurisdiction is made clear by the example given by the Supreme Court in Bradley v. Fisher. There the Court stated:"Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked." (Supra, 80 U.S., at 352).

[16]

Whether Judge DeRiggi actually considered the Peace Affirmation in deciding the 330 Motion, as opposed to the 330 Reargument Motion, is open to question, since that affirmation is dated subsequent to the November 15, 2002 decision on the 330 Motion. For the purposes of this motion, of course, that claim by plaintiff is accepted as true (see, People v. New York City Transit Authority, supra, 59 NY2d, at 348).

[17]

As explained by the Appellate Division in Alvarez:"In this case, plaintiffs' interference consisted of threats and potential murder in a complex and expansive prosecution, arguably escalating the degree of judicial oversight permissible to neutralize the acts of these very detainees. The measures taken in this case, restricting these particular detainees' demonstrated ability, despite being in Correction custody, to communicate those threats, or to solicit the services of other inmates or outside parties to perpetrate assaults or homicides, or to physically carry out assaults personally, were rationally related to the threats posed by these detainees. The record reflects that the measures were not undertaken for punitive purposes, or as discipline for detainment infractions, but, rather, were specifically designed, based on the urgency of the situation, to accomplish the court's stated objective of preventing plaintiffs' imminent interference with the orderly trial of their cases." (Supra, 264 AD2d, at 36 [emphasis added]).

[18]

Obviously recognizing the absence of merit of his lawsuit, plaintiff appears to invite this Court to ignore established precedent in the immunity area, stating:"Defense counsel apparently takes the [*20]position that all law has already been decided and trial courts are not at liberty to interpret case law or to decide questions of law when a particular legal question has not been addressed. Defense counsel is wrong in both respects. Trial courts are not required to blindly follow stare decisis where the decisional law is antiquated and the modern application of it would be inappropriate for the facts presented. Trial courts also may decide the law where there is a lacuna in the decisional law. In both instances and subject to appeal, law and in a sense policy, may be written from the ground up." (Liotti Affirm., par.24 [italics in original]).Because this Court recognizes that there is no "lacuna" in this area of the law, it declines the invitation to ignore 200 years of precedent.

[19]

Even if his claim had legal support, which it does not, he should not have sued Judge DeRiggi in his official capacity in Supreme Court, since exclusive jurisdiction over a cause of action against the Judge in that capacity, as opposed to his individual capacity, is posed in the Court of Claims (see, Court of Claims Act §9[2]). Because he has sued the Judge in his judicial capacity in this court, that branch of the motion which seeks dismissal of that claim is granted. Not surprisingly, this relief was not even addressed by plaintiff in his opposition papers.

[20]

Notwithstanding this conclusion, in the exercise of its discretion the Court denies Judge DeRiggi's second request for relief, which is for an order pursuant to 22 NYCRR §130-1.1 imposing sanctions against plaintiff for commencing and continuing a frivolous lawsuit.