Defendants have made application for a pre-answer motion to dismiss pursuant to CPLR Rule 3211 (a) (7) for failure to state a cause of action. The following papers were considered by the court:

Notice of Motion, filed December 6, 2006

Affirmation of Joel L. Marmelstein, Esq., dated December 6, 2006

Exhibit A, annexed to the moving papers

Opposition Affidavit of Christopher J. Zito, Claimant, sworn to January 17, 2007

Assorted transcript pages annexed to the opposition affidavit

This matter comes before the court on defendants' pre-answer motion to dismiss the claim herein, pursuant to CPLR Rule 3211 (a) (7), for failure to state a cause of action.

Defendants contend that the individuals named as defendants, to wit: Judge Romano and Judge Cook, are not proper defendants in the Court of Claims. Furthermore, the defense argues that, as a result of judicial immunity, [*2]the State, as the remaining defendant, cannot be held liable for the acts of these defendants.

Claimant, in a meandering claim, seeks both compensatory and punitive damages for rulings adverse to him, made by Oneida County Supreme Court Justice Romano, and Acting Supreme Court Justice Cook (both in his role as an Acting Supreme Court Justice and thereafter, following his retirement, as a Judicial Hearing Officer assigned to the matter) in a Supreme Court action apparently arising out of the dissolution of claimant's marriage.^[FN1] The claims are voluminous, but distilled to their essence, allege that Judges Romano and Cook did not treat the parties equally, failed to afford sufficient time to claimant to present his case, and in their demeanor and rulings effectively violated assorted constitutional rights of the claimant.

The law is well settled that:

[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint 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 [citations omitted]. . . . In assessing a motion under CPLR 3211 (a) (7) . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' [citations omitted].

Leon v Martinez, 84 NY2d 83, 87-88.

While the claim lacks precise details of the alleged acts of wrongdoing, the court will assume for the purposes of this motion that the specific factual allegations of the claim are true. Nevertheless, the claim fails to state a cause of action actionable in this court.

This court has authority to act only in those limited circumstances in which the legislature of the State of New York has chosen to waive sovereign immunity (see e.g. Court of Claims Act § 8, et seq.). Thus, this claim must be viewed in the light of this court's circumscribed authority to act.

At the outset, the claim must be dismissed as against Frank Cook and Bernadette Romano, the individuals named as defendants. Individuals cannot be sued in the Court of Claims (Court of Claims Act § 9; Griffen v State of New York, UID No. 2006-030-585, Claim No. None, Motion No. M-72280; Davey v State of New York, UID No. 2005-029-503, Claim No. 110503, Motion No. M-69950).

While this claim also seeks punitive damages, the State of New York is not subject to punitive damages (Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]; Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]). Insofar as claimant seeks punitive damages, that portion of the claim is dismissed.

Furthermore, the State itself cannot be held liable for the acts of employees for their judicial acts. As the Court explained in Mitchell v State of New York, UID No. 2005-015-025, Claim No. 110085, Motion Nos. M-69741, M-69742, M-70183, CM-69959:

. . . it is well settled that the State "may not be held liable for the actions of a state-employed judge where, as here, those actions are cloaked with judicial immunity (see Swain v State of New York, 294 AD2d 956; Weiner v State of New York, 273 AD2d 95, 97; Welch v State of New York, 203 AD2d 80, 81; Harley v State of New York, 186 AD2d 324; Word v City of Mount Vernon, 65 AD2d 622)" (Montesano v State of New York, 11 AD3d 436). "The rule [of judicial immunity] which exempts Judges of courts of record from liability for all acts done in the exercise of a judicial function is deeply rooted in the common law (Murray v Brancato, 290 NY 52, 55 citing Yates v Lansing, 5 Johns 282, 291; and Bradley v Fisher, 13 Wall [80 US] 335, 351)" (Lombardoni v Boccaccio, 121 AD2d 828). "Judges have absolute immunity from suit for judicial acts performed in their judicial capacities. Mireles v Waco, 502 US 9, 12; see also Oliva v Heller, 839 F2d 37 (2d Cir 1988). This absolute judicial immunity is not overcome by allegations of bad faith or malice, nor can a judge be deprived of immunity because the action he took was in error . . . or was in excess of authority' (Mireles, 502 US at 13)" (Wood v Incorporated Village of Patchogue, 311 F Supp. 2d 344). There are but two exceptions to the rule of judicial immunity, the first is where the judge is not acting as a judge and the second where the judge though acting under color of judicial authority lacks any jurisdiction to support the action taken (see Alvarez v Snyder, 264 AD2d 27, 31; Mireles, supra).

This judicial immunity extends not only to the judges themselves, but to those who act in a quasi-judicial capacity (Welch v State of New York, 203 AD2d 80; Swain v State of New York, 294 AD2d 956, 957). Thus, Judge Cook, even when acting as a judicial hearing officer, would be afforded the protective immunity.

There are no factual allegations by the claimant that named defendants were acting as other than judges or judicial hearing officer, or that their courts lacked jurisdiction to hear the matters which underlie this claim. As a result, since the acts of the individuals are protected by

immunity, so too is the State afforded that immunity. And, as noted above, even if the acts of these judicial officers were colored by a prejudice against this claimant, or were undertaken with malice, immunity would nonetheless apply. Therefore, the entire claim against the defendants must be dismissed.

Even assuming arguendo that there were valid federal constitutional claims against the defendants not protected by judicial immunity, the Court of Claims is not the proper forum for such claims. This court has no jurisdiction to consider claims under the U.S. Constitution (Brown v State of New York, 89 NY2d 172, 185; Griffen v State of New York, UID No. 2006-030-585, Claim No. None, Motion No. M-72280).

Assuming that there could be a valid state constitutional claim, such claims are tightly circumscribed, and would not be proper in this forum in this factual context. As the court noted in Griffen v State of New York (UID No. 2006-030-585, Claim No. None, Motion No. M-72280):

[i]n New York, constitutional provisions are presumptively self-executing. Brown v State of New York, supra at 186. Violation of every self-executing provision will not always support a claim for damages however. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. Brown v State of New York, supra at 191.

This claim is reflective of the frustrations of a dissatisfied litigant. The law does afford such a litigant redress - in the form of appeal from adverse rulings. Redress does not lie in this collateral attack against the State or its judges for actions taken by them within the scope of their duties and in accordance with law. There are no factual allegations of actions taken by these defendants which were extra-judicial, or outside the scope of their judicial roles.

As was the case in Griffen, supra, in this claim there were avenues of relief available through alternative proceedings - the most obvious of which would have been appeal from any of the other courts' rulings adverse to claimant, or through the use of an Article 78 proceeding, if warranted by the facts. Therefore, even absent judicial immunity, there is no factual basis stated in the claim for relief in the Court of Claims on New York State constitutional grounds.

Defendants' motion is granted and this claim is dismissed pursuant to CPLR Rule 3211 (a) (7) for failure to state a cause of action.

NORMAN I. SIEGEL

Judge of the Court of Claims

Utica New York

March 5, 2007