Claimant Albert G. Fraccola, Jr. commenced this action seeking $133 million in unspecified damages to property and assets allegedly caused by the acts or omissions of the New York State Supreme Court in Rome, the Appellate Division, Fourth Department, and the Court of Appeals (see Claim, paragraphs 4 and 5).^[FN1] Specifically, Claimant alleges that his [*2]Federal and State Constitutional due process and equal protection rights were violated when Supreme Court so ordered a Stipulation over which it lacked subject matter jurisdiction, when Supreme Court refused to vacate the Stipulation, and when the Appellate Division and Court of Appeals rejected Claimant's appeals. Claimant further characterized this as "an abuse of power" (Attachment to Claim, page 1).^[FN2]

Defendant has filed and served a Pre-Answer Motion to Dismiss the Claim for, among other things, failure to state a cause of action upon which relief can be granted (see Affirmation of G. Lawrence Dillon, Esq.). Claimant opposes Defendant's motion and filed an Affidavit in Opposition.

The Claim in this case arises from protracted legal proceedings between Albert G. Fraccola, Jr. and Phyllis Fraccola, and related business entities within their control. Among the legal proceedings were two actions commenced by Playtime Boutique, Inc. (Playtime) in Supreme Court, Oneida County. The first was against Phyllis Fraccola for conversion of $151,000.00 of Playtime's cash assets. The second was against Phyllis Fraccola, individually and as sole shareholder of Hydrania, Inc., for conversion of that portion of Playtime's business operation located in Plattsburgh, New York valued between $600,000.00 and $900,000.00 (see Claimant's Affidavit in Opposition, page 2). According to Claimant, a trial commenced in the two actions on February 15, 2005, and testimony continued until February 18, 2005 (see Claimant's Affidavit in Opposition, page 3).

On February 18, 2005, Claimant and Phyllis Fraccola, each represented by separate Counsel, participated in a settlement discussion which was transcribed by a court reporter in the presence of Paul R. Lukin, Esq., law clerk for the Honorable John W. Grow, then a Justice of the Supreme Court, Oneida County. Justice Grow was not present. A copy of the transcript is attached as Exhibit 1 to Claimant's Affidavit in Opposition to Defendant's motion. On the first page, immediately under the caption containing the names and RJI numbers of the two cases, the transcript is entitled "STIPULATION" with the date of "February 18, 2005", and the location of "Rome, New York 13340" (Claimant's Affidavit in Opposition, Exhibit 1). According to the [*3]transcript, Mr. Louis T. Brindisi, Esq., counsel for Phyllis Fraccola, began the discussion on the record by reporting that the parties had reached a settlement of the two cases and were going to place that settlement on the record. In his Affidavit in Opposition, Claimant characterizes the stipulation as a " proposal' [sic] purported Stipulation" (Claimant's Affidavit in Opposition, page 3). As set forth in the transcript, Mr. Brindisi outlined the settlement which included the distribution of specified assets and liabilities among Claimant and Phyllis Fraccola and the discontinuance of three additional related pending actions — one venued in Plattsburgh, another in Binghamton, and another in Oneida County. These three additional lawsuits were not identified by caption or by index or RJI number. As a result, the settlement that was placed on the record was akin to an agreement-in-principle, requiring numerous documents to be prepared and executed in order to effectuate a complete resolution. Along these lines, Mr. Brindisi states on the record that:

As I indicated, it is the intention of both parties, Mr. Fraccola and Mrs. Fraccola, to end proceedings pending in any court of competent jurisdiction, and if it has not been placed on the record and it comes up in the future, they will sign whatever papers are necessary to discontinue any other actions that may pop up that we don't know about.

I think I've put on the record that they will give general releases of stipulations to themselves individually and to all the corporations, and I think that's the stipulation to settle.

(Claimant's Affidavit in Opposition, Exhibit 1, page 7). Mr. Brindisi states that Phyllis Fraccola is in the courtroom and has heard the stipulation. He then asks her, "do you agree to that stipulation?", and she answers, "Yes" (Claimant's Affidavit in Opposition, Exhibit 1, page 8). Mr. Richard N. Bach, Esq., counsel for Playtime, states that:

I don't know if they should be placed under oath or not, but. [sic] Mr. Fraccola is in the courtroom today and he's listened to this stipulation by Mr. Brindisi and I'll ask Mr. Fraccola if he agrees to the stipulation as outlined by Mr. Brindisi on the record.

(Affidavit in Opposition, Exhibit 1, page 8-9). Mr. Fraccola answered "Yes" (Claimant's Affidavit in Opposition, Exhibit 1, page 9). Mr. Brindisi concluded the discussion on the record by stating:

Based upon the consents of the parties and the stipulation as placed on the record, if an order is necessary for any of the stipulations that have been placed on the record, I'm assuming that Judge Grow will continue his jurisdiction in this case. That's it.

(Claimant's Affidavit in Opposition, Exhibit 1, page 9).

Claimant is the sole shareholder of Playtime, its president, and one of its two directors. And, although Claimant expressed his agreement with the Stipulation placed on the record on February 18, 2005, he voted to disapprove the Stipulation at a meeting of the Playtime Directors held June 17, 2005. By letter to Mr. Brindisi dated July 2, 2005, and copied to Justice Grow, Mr. Bach advised that the Directors of Playtime had "unanimously rejected the proposed [*4]settlement of February 18th, 2005" (Claimant's Affidavit in Opposition, Exhibit 2).^[FN3] Despite this notification, Claimant alleges that Mr. Brindisi made an ex parte application to Justice Grow who, on July 28, 2005, appears to have "So Ordered" the transcript constituting the February 18, 2005 Stipulation by affixing his name on a signature line under the typed words "SO ORDERED." Citing the Rules of the Chief Administrator of the Courts prohibiting certain ex parte communications (see 22 NYCRR 100.3), Claimant alleges that it was inappropriate and an abuse of power for Justice Grow to entertain Mr. Brindisi's ex parte application and "So Order" the February 18, 2005 Stipulation. According to Claimant, in September 2007, Playtime moved before Justice Grow to vacate the Stipulation, but Justice Grow recused himself from the matter.

This Court has reviewed the underlying record of the proceedings relating to Claimant's motion to vacate Justice Grow's Order. A review of that record reveals that, by Notice of Motion, filed July 25, 2008, Playtime moved to vacate the February 18, 2005 Stipulation. By Order entered February 5, 2009, Supreme Court Justice Samuel D. Hester denied Playtime's application (see Playtime Boutique, Inc. v Phyllis Fraccola, Playtime Boutique, Inc., v Phyllis Fraccola, Individually and as sole Shareholder of Hydrania, Inc., Sup Ct, Oneida County, Feb. 2, 2009, Hester, J., Index Nos. CA2002-001819 [RJI No. RS-02-0974], CA2002-001820 [RJI No. RS-02-0983]).^[FN4] In a bench decision, Justice Hester determined that Playtime's application was untimely because Playtime was served with notice of entry of the so ordered Stipulation on August 23, 2005.^[FN5] Justice Hester further determined that, in any event, the requirements of [*5]CPLR 2104 were satisfied by virtue of the fact that the Stipulation was reduced to the form of an order and entered,^[FN6] and that Claimant, who appeared with counsel on behalf of Playtime as its President and sole shareholder, could not claim that he lacked the authority to enter into the Stipulation. The Appellate Division, Fourth Department affirmed that Order without costs for reasons stated by Justice Hester (see Playtime Boutique, Inc. v Fraccola, 71 AD3d 1511 [4th Dept 2010]). Playtime sought leave to appeal, but the Court of Appeals dismissed the appeal upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Playtime Boutique, Inc. v Fraccola, 14 NY3d 923 [2010]).

On December 22, 2010, following that determination by the Court of Appeals, Claimant and Playtime filed a summons and complaint against Phyllis Fraccola and Hydrania, Inc. in Supreme Court, Oneida County. The complaint raised the same matters that were the subject of the February 18, 2005 Stipulation, and also argued for the first time, before the Supreme Court, that Justice Grow's "so order" of the Stipulation was in violation of Plaintiffs' due process rights. Defendants there moved to dismiss the complaint based on res judicata and collateral estoppel, and Justice Hester granted the motion and ordered, among other things, "Albert G. Fraccola, Jr., is hereby restrained from filing any further actions regarding the subject matter contained in the Stipulation of February 18, 2005" (Albert G. Fraccola, Jr. and Playtime Boutique, Inc. v Phyllis Fraccola. et al., S Ct, Oneida County, May 18, 2011, Hester, J., Index No. CA2010-003275, RJI No. 32-11-38).^[FN7] On appeal, the Appellate Division affirmed (see Fraccola v Fraccola, 92 AD3d 1209 [4th Dept 2012]). The appeal of that determination was dismissed on the ground that no substantial constitutional question is directly involved (see Fraccola v Fraccola, 19 NY3d 846 [2012]) and thereafter, on August 30, 2012, leave to appeal was denied (see Fraccola v Fraccola, 19 NY3d 809 [2012]).

Defendant moves to dismiss the instant Claim, pursuant to CPLR 3211 (a) (7) and (8) on the grounds that the Claim fails to state a cause of action because, even assuming all the facts alleged by Claimant to be true, the actions of Justice Grow, the Appellate Division, and the Court [*6]of Appeals, are all entitled to judicial immunity. In opposition to Defendant's motion, Claimant argues that Justice Grow's actions in "so ordering" the February 18, 2005 Stipulation was ex parte, done without a motion as required by CPLR 2211, and that Plaintiff was not provided with notice and an opportunity to be heard. According to Claimant, such action is "non-judicial action" and was "taken in complete absence of jurisdiction" and, therefore, not immune from liability (Claimant's Affidavit in Opposition, paragraph 19). In contrast, Claimant does not argue that the actions of the Appellate Division or Court of Appeals were non-judicial or taken in the absence of jurisdiction.

In making a determination regarding Defendant's motion to dismiss made pursuant to CPLR 3211 (a) (7), "[the] claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true" (IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). "[T]he dispositive inquiry is whether [Claimant has] a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory' " (id., quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). In making this determination, factual material set forth in affidavits may be considered for the limited purposed of remedying defects in the pleading (see Nonnon v City of New York, 9 NY3d 825, 827 [2007]).

The waiver of the State's sovereign immunity (see Court of Claims Act § 8) does not preclude the State from asserting common-law immunity-based defenses such as governmental, legislative and judicial immunity, which operate to foreclose liability as against the State (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 442 [2011]). With respect to the defense of judicial immunity, " [c]ourts have recognized that it is imperative to the nature of the judicial function that Judges be free to make decisions without fear of retribution through accusations of malicious wrongdoing' " (Mosher-Simons v County of Allegany, 99 NY2d 214, 219 [2002], quoting Tarter v State of New York, 68 NY2d 511, 518 [1986]). Accordingly, the doctrine of judicial immunity provides that judges will be absolutely immune from civil liability for judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously and corruptly (see Stump v Sparkman, 435 US 349, 355-356 [1978]; Murray v Brancato, 290 NY 52, 55 [1943]). The two exceptions to judicial immunity are when an action is not taken in the judge's judicial capacity, and when the action, though judicial in nature, is taken in the complete absence of jurisdiction (see Mireles v Waco, 502 US 9, 11-12 [1991]; Alvarez v Snyder, 264 AD2d 27, 34 [1st Dept 2000], lv denied 95 NY2d 759 [2000])."The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]). As is relevant to this Claim, unless the subject matter jurisdiction of the New York State Supreme Court has been specifically proscribed, like, for example, claims for money damages brought against the State, which must be initiated and tried in the Court of Claims, the Supreme Court is vested "with the power to hear any case that any other court in the [Unified Court System] could hear" (People v Correa, 15 NY3d 213, 228 [2010]; see NY Const, art VI, § 7). Here, Claimant does not argue that Supreme Court did not have subject matter jurisdiction over the underlying commercial actions. Rather, the factual allegations of the Claim, as amplified by Claimant's Affidavit, assert improper conduct by Justice Grow. Even assuming the truth of Claimant's assertion that Justice Grow [*7]acted improperly in "So Ordering" the February 18, 2005 Stipulation upon Mr. Brindisi's ex parte application, Justice Grow nevertheless rendered a judicial act when he so ordered the Stipulation. While Justice Grow later criticized the stipulation as not having been "carefully thought out," and even though the transcript of the settlement discussion was taken outside the presence of the judge and was not reduced to a separate order, this Court is not aware of any provision of law which would limit the authority of Justice Grow from "So Ordering" it (cf. CPLR 2219 ["An order determining a motion made upon supporting papers shall be signed with the judge's signature or initials by the judge who made it, state the court of which he or she is a judge and the place and date of the signature, recite the papers used on the motion, and give the determination or direction in such detail as the judge deems proper"]). Despite Claimant's argument to the contrary, such conduct is immune from suit under the doctrine of judicial immunity (see Murray v Brancato, 290 NY at 55; Alvarez v Snyder, 264 AD2d 27 at 34). While an action for money damages is not available to remedy errors at the trial court, in this case, an application by Claimant to vacate Justice Grow's Order (see CPLR 5015), and the appeal of the court's determination upon such application, is the procedure available to Claimant to correct judicial errors in the making of the underlying Order (see Forrester v White, 484 US 219, 227 [1988] ["Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability"]). Here, Claimant availed himself of the proper procedure. While his application was denied, such adverse determinations are inherent in the litigation process, and subject to review on appeal. Accordingly, all of the actions complained of here are cloaked with judicial immunity for which the State may not be held liable (see Montesano v State of New York, 11 AD3d 436, 436 [2d Dept 2004]).

To the extent Claimant alleges violations under the Federal Constitution, such claims are beyond the jurisdiction of the Court of Claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). To the extent that Claimant alleges State constitutional torts, his recourse was to move to vacate Justice Grow's Order and appeal any subsequent adverse determination (see CPLR 5701 [a] [3]). Accordingly, "[r]ecognition of a constitutional tort claim here is neither necessary to effectuate the purposes of the State constitutional protections [Claimants] invoke[ ], nor appropriate to ensure full realization of [their] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]).

Accordingly, Defendant's Motion No. M-82697 is granted, and the Claim is dismissed.

Albany, New York

May 30, 2013

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Claim, filed November 5, 2012, with "Attachment to the Court of Claims Form," consisting of three pages; [*8]

Pre-Answer Motion to Dismiss, filed November 29, 2012;

Affirmation of G. Lawrence Dillon, Esq., dated November 29, 2012, with Exhibit A and Court of Claims Decision entitled "Gookins v State of New York;"

Affidavit of Albert G. Fraccola, Jr., sworn to on January 31, 2013, with Exhibits 1-2;

Playtime Boutique, Inc. v Phyllis Fraccola, Albert G. Fraccola, Jr. v Phyllis Fraccola, Sup Ct, Oneida County, February 22, 2007, Grow, J., RJI Nos. 32-02-094, 32-06-0200;

Fraccola v Fraccola, Sup Ct, Oneida County, February 2, 2009, Hester, J., Index No. CA2008-001797, RJI No. 32-08-0707;

Playtime Boutique, Inc. v Phyllis Fraccola, Playtime Boutique, Inc., v Phyllis Fraccola, Individually and as Sole Shareholder of Hydrania, Inc., Sup Ct, Oneida County February 5, 2009, Hester, J., Index Nos. CA2002-001819 [RJI No. RS-02-0974], CA2002-001820 [RJI No. RS-02-0983];

Albert G. Fraccola, Jr. and Playtime Boutique, Inc. v Phyllis Fraccola, et al., Sup Ct, Oneida County, May 18, 2011, Hester, J., Index No. CA2010-003275, RJI No. 32-11-38.