Opinion
Claim No. 139463
12-13-2023
Etan Leibovitz, Claimant, v. State of New York, Defendant.
For Claimant: Etan Leibovitz, Pro se For Defendant: Hon. Letitia A. James, Attorney General of the State of New York (By: Nicole M. Procida, Esq. Assistant Attorney General)
Unpublished Opinion
For Claimant: Etan Leibovitz, Pro se
For Defendant: Hon. Letitia A. James, Attorney General of the State of New York (By: Nicole M. Procida, Esq. Assistant Attorney General)
Javier E. Vargas, J.
Papers Considered:
Notice of Motion, Affirmation & Exhibits Annexed 1-4
Affidavit in Opposition & Exhibits Annexed 5-7
Upon the foregoing papers and for the following reasons, the Motion by Defendant State of New York (hereinafter "State"), seeking the dismissal of this Claim, is granted and the Claim is hereby dismissed as provided herein below.
Pursuant to Court of Claims Act § 11, Claimant, Etan Leibovitz (hereinafter "claimant") served a Notice of Intention to File a Claim upon the Attorney General's Office on February 13, 2023, attempting to provide notice of an action against the Defendant State of New York (hereinafter "State"), alleging that "[t]he acts of the defendant: NY State Court Officers Kenneth Coy[,] Shield #8130, Michael Zebro[,] Shield #8261 - False Arrest, False Imprisonment, Assault and Battery, Malicious Prosecution Docket No. CR 028558-22QN, Negligence, Negligent Hiring, Retention and Training[.] Arrested on November 15, 2022 at approximately 10 AM - Queens Civil Court 3rd floor hallways" (Notice of Intention to File a Claim, at 1, ¶ 2). This is followed by claimant's recitation of alleged conversations he had with other Court Officers, which he refers to as "Verbal Assault, threats, and battery - At approximately 11:00 a.m." (id. at 2, ¶ 2). Other than these conclusory statements, no details were provided with respect to the incidents.
However, by Verified Claim filed July 11, 2023, the claimant commenced the instant action against the State to recover damages for various alleged intentional torts and constitutional violations arising from his arrest and criminal prosecution by Queens County Civil Court, State Court Officers and the Queens County District Attorney's Office. Specifically, the Claim - comprised of 200 paragraphs on 42 pages - explains that the claimant has been pursuing a business legal dispute against his prior business partners, Alex Patino and David Zimm, for over ten years and has expressed frustration about the proceedings delay to judges of the Queens County Civil Court (see Claim at 4, 6, 7, ¶¶ 14, 30, 31). Several court appearances ensued in 2022, wherein claimant would always abruptly ask the presiding judge at the time, Civil Court Judge John Katsanos, whether "he read the complete docket and if he had sufficient amount of time to familiarize himself with the [c]laimant's pending lawsuit before presiding over the hearing" (id. at 7, ¶¶ 34, 35). It came to a point that Judge Katsanos found claimant in civil contempt of court on October 21, 2022, for his courtroom antics, "use of inappropriate language" and "belligerent" behavior, including his statement that "Alright, let the record reflect that the Judge has no clue what the fuck is going on," but later withdrew his contempt finding (id. at 9-10, ¶¶ 43, 44, 45).
At a subsequent court appearance on November 15, 2022, at around 10:00 a.m., before Judge Katsanos, the Claim alleges that claimant repeatedly addressed the Judge again questioning whether he had properly prepared for his case or read his legal documents, and telling him:
Sir, in your decision, you didn't articulate the evidence that was moved in... So I tell you to tread very lightly, I am not dealing with corruption... At the end of the day, he -you rendered a decision last week, a couple of weeks ago citing due process, my due process has been violated from inception, 25 fucking judges... You have been asked 7 times if you have read the complete docket.(id. at 15-16, ¶¶ 69, 72, 77). Claimant maintains that he wanted to provide the Judge with a compact disk ("CD") ostensibly containing recorded conversations with his adversaries clearly establishing their liability. With that, "claimant then dropped the CD into the well" in front of the bench because the Judge "refused to take direct evidence" from him, before exiting the courtroom (id. at 17, ¶ ¶ 78, 80). According to the Claim, Judge Katsanos then declared: "Let the record reflect that an object was thrown at the Judge" (id. at 17, ¶ 79).
It should be noted that the Claim is replete with quoted language of several colloquies, conversations and statements between claimant and Judge Katsanos or Court Officers, but this Court has not been provided with an actual certified transcript of any proceedings or recorded conversations.
Upon stepping outside the courtroom, the Claim alleges that State Court Officers Coy and Zebro "effectuated an unlawful arrest" of claimant without probable cause (id. at 17, ¶ 82). The Claim then provides a long recitation of claimant's alleged treatment by other Court Officers during the process of transporting him in handcuffs from Queens Civil Court to the 102nd Precinct in Queens County to Queens Central Booking and to the Queens County Criminal Court, including quotes of conversations allegedly had between the Court Officers, New York Police Department Police Officers and even the Queens County Assistant District Attorney (see id. at 17-25). All of these lead to claimant's causes of action for false imprisonment and arrest, battery, assault, abuse of process, illegal confinement and State constitutional violations. According to the Claim, some causes of action accrued on the date of his arrest of November 15, 2022, and others on November 16, 2022, upon his arraignment.
The Claim further alleges that claimant was falsely and maliciously prosecuted for 93 days by the Judge and Court Officers in that they drafted 15 different versions of the events leading to his arrest and arraignment on the Misdemeanor Complaint, according to conversations claimant allegedly heard between the Court Officers and Police Officers while he was confined at Queens County Criminal Court. According Judge Katsanos:
Please note that while I turned off the FTR [ For The Record recording application] after 3 minutes because the [claimant] opted to leave the courtroom to find or check his phone... I did not turn the FTR back on because I got distracted by [claimant] on his return as he became belligerent, threatened myself and officers, and threw an object at me even if we tried to calm [him] so he could proceed with his bench trial where defendant Zimm was earlier precluded to present evidence when he missed a fraud-on-the-court hearing on or about April 6, 2022(id. at 29, ¶ 132). According to the Misdemeanor Complaint, the claimant was charged with several misdemeanors, to wit: attempted assault with intent to cause physical injury (Penal Law §§ 110.00, 120.00), criminal contempt, unfavorable behavior (Penal Law § 215.30), resisting arrest (Penal Law § 205.30), harassment (Penal Law § 240.26), and obstruction of governmental administration (Penal Law § 195.05) (see Claim, Exh. B, at 47). Claimant maintains that there was no probable cause to arrest him because he never threw anything at the Judge. The criminal case against claimant proceeded in Queens County Criminal Court with him repeatedly calling and sending emails questioning the Queens District Attorney's Office's competence and alleging corruption in the handling of his case (see Claim, Exh. A, at 45). Nevertheless, on February 17, 2023, the Queens Assistant District Attorney allegedly moved before the Criminal Court successfully to dismiss the criminal case against claimant, and the case was dismissed "in the interest of justice" under Criminal Procedure Law § 170.40. It seems that Judge Katsanos declined to testify and pursue the charges against claimant. This Claim then ensued, requesting the sum of $1,800,000 as total damages for claimant's pain, suffering and legal costs (see Claim, Schedule of Damages).
During the pendency of this case, the claimant has engaged in an unrelenting pursuit of information from the Court of Claims, prompting my Principal Law Clerk and Secretary to repeatedly answer his questions via telephone, email and written correspondence to address his concerns. However, he has inexplicably been escalating his displeasure with a barrage of almost daily telephone calls to Chambers and to the Assistant Attorney General, numerous emails, appearing at the Court building unannounced in person and creating a scene in the lobby, despite this Court's repeated requests to contact Chambers only in writing and copying his adversary. As evidence by recorded voice mails, he has gone to the point of calling us names, cursing at us, using obscene language and threatening us with commencing lawsuits against us in the Supreme Court and the Federal District Court. It should be noted that claimant has previously been found guilty of crimes involving similar behavior at least twice, and already served jail time (see People v Leibovitz, 2018 NY Slip Op 51719[U] [App Term, 1st Dept, Nov. 30 2018]; People v Leibovitz, 2018 NY Slip Op 50577[U] [App Term, 2d Dept, April 13, 2018]).
By Notice of Motion to Dismiss filed August 21, 2023, the State moves for the dismissal of the Claim, pursuant to CPLR 3211(a)(7), on the grounds that it fails to state cognizable causes of action, and that it was not timely served and filed in accordance with Court of Claims Act §§ 9, 10 and 11(b). Specifically, the State argues that the Claim should be dismissed because, inter alia, the Judge and Court Officers are immune from liability for their judicial and quasi judicial discretionary actions under Arteaga v State of New York (72 N.Y.2d 212 [1988]), that the Court lacks jurisdiction to hear violations of constitutional rights, and that the Claim was not timely filed because the Notice of Intention lacked sufficient detail to permit an investigation of the allegations and therefore failed to extend the time for filing and serving the Claim, which nonetheless, fails to state a cause of action. The State also asserts that, as a matter or law, the State cannot be held liable on the causes of action based upon negligent hiring, training and supervision of the Court Officers, or vicarious liability for their alleged assault and battery upon claimant because they were acting within the scope of their authority.
By Affidavit in Opposition filed August 28, 2023, the claimant opposes the Motion to dismiss, arguing that his Notice of Intention was "certainly more than" sufficiently detailed as to date, location and nature of the claims to promptly notify the State of the possibility of a future action against it, and that in this situation involving an arrest of a civilian, the State itself has already internally investigated the relevant facts and cannot feign ignorance of the occurrence, citing Davila v State of New York (140 A.D.3d 1415, 1417 [3d Dept 2016]). Claimant affirms that several State agencies, like the Queens County Civil Court, the State Unified Court System and the State Department of Public Service, purportedly investigated the incident and culled the necessary information regarding his Claim. While agreeing that his cause of action for a State constitutional violation should be dismissed, the claimant further argues that the State is not immune from liability for the actions of its Judge and Court Officers because they arrested him without probable cause of the commission of a crime. After reviewing the submissions, the Court disagrees with the claimant.
As a threshold matter, Court of Claims Act § 11(b) provides that a Notice of Intention to File a Claim and a Claim shall set forth, among other things, "the time when and place where such claim arose [and] the nature of same," in order to "enable [the State] to investigate the claim and promptly ascertain the existence and extent of its liability" (Czynski v State of New York, 53 A.D.3d 881, 882-83 [3d Dept 2008]; see Cobin v State of New York, 234 A.D.2d 498, 499 [2d Dept 1996], lv dismissed 90 N.Y.2d 925 [1997]). Importantly, "[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11(b) obligates the claimant to allege" (Lepkowski v State of New York, 1 N.Y.3d 201, 208 [2003]; see Kolnacki v State of New York, 8 N.Y.3d 277, 280 [2007]). Since Court of Claims Act § 11(b) is "jurisdictional in nature and, therefore, must be strictly construed" (Finnerty v New York State Thruway Auth., 75 N.Y.2d 721, 722 [1989]; see Leibovitz v State of New York, UID No. 2015-047-124 [Ct Cl, Sherwood, J., July 6, 2015]), failure to comply with the statute deprives the Court of Claims of subject matter jurisdiction over the claim (see Lepkowski v State of New York, 1 N.Y.3d at 206-209; see Sacher v State of New York, 211 A.D.3d 867 [2d Dept 2022]).
Applying these legal principles to the matter at bar, the State has sufficiently established that the Claim must be dismissed as jurisdictionally defective and for failure to state a cause of action. The record reflects that this Claim accrued on November 15, 2022, and per statute, a Notice of Intention to File a Claim or a Claim should have been served upon the Attorney General's Office within 90 days of the accrual date or by February 13, 2023 (see Court of Claims Act § 10[3]). Although the Notice of Intention was indeed served upon the Attorney General on that date, it failed to preserve claimant's right to file a Claim. A review of the Notice of Intention reflects that it did not set forth the nature of the claims with factual averments in sufficient detail to permit the State to ascertain the underlying facts and its potential liability. The claimant merely provided a bare-bones description of him being arrested in court by Court Officers with one-word listing of the causes of action claimed (see Claim, Notice of Intention). Without more, being arrested by Court Officers at a courthouse does not give rise to a cause of action for the myriad of intentional torts or constitutional violations that the claimant alleges.
The Notice of Intention does not explain whether the claimant's arrest was without probable cause, that the criminal action was commenced due to a wrongful or improper motive by a State actor, or that it was terminated in his favor in a manner that evidences his innocence (see Casciaro v State of New York, UID No. 2018-015-167 [Ct Cl, Collins, Oct. 3, 2018]). Nor did claimant ever mention claims for "abuse of process" and "deprivation of constitutional rights" on his Notice of Intention, even though they are raised on his Claim. Setting forth the nature of the claim is one of the essential requirements of Court of Claims Act § 11(b), and claimant's "failure to sufficiently particularize the nature of [his] claim constitutes a jurisdictional defect mandating dismissal" (Kimball Brooklands Corp. v State of New York, 180 A.D.3d 1031, 1032 [2d Dept 2020]). This Court finds that, since the Notice of Intention was defective, it did not extend the time for claimant to actually file and serve the Claim, hence the Verified Claim filed on July 11, 2023 was untimely.
Even if claimant's Notice of Intention adequately preserved the timeliness of his Claim, it is clear from the record that he failed to establish any tort liability against Judge Katsanos or the Court Officers, who arrested him apparently at his direction. Pursuant to the doctrine of judicial immunity, it is well-settled that judges and quasi-judicial court personnel "have long been immune even from tort liability suits alleging that their decisions were tainted by improper motives," excess of authority, maliciousness or corruption (Tarter v State of New York, 68 N.Y.2d 511, 518 [1986]; see, e.g. Stump v Sparkman, 435 U.S. 349, 356-357 [1978]; reh denied 436 U.S. 951 [1978], quoting Bradley v Fisher, 13 Wall [80 US] 335, 357 [1872]). "Courts 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" (Tarter v State, 68 N.Y.2d at 518). Similarly, "[w]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence of malice" (Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 441 [2011]; see Haddock v City of New York, 75 N.Y.2d 478, 452 [1990]).
Here, the Claim itself describes in detail - with his own transcriptions - how claimant had exhibited a pattern of disrespect and belligerent conduct during several court proceedings before Judge Katsanos, and was previously held in civil contempt of court in October 2022. On November 15, 2022, the claimant was again disrespectfully overtaking the proceeding and repeatedly questioning the competency of Judge Katsanos, who was in his judge's robes in the courtroom presiding over claimant's lawsuit, when he unexpectedly "dropped the CD" on the well of the courtroom in front of the Judge, which the Judge and Court Officers described as "thr[owing] an object" at him. Despite being on notice to behave appropriately given the Judge's warnings and prior contempt citation against him, the claimant nevertheless decided to behave in an obstreperous and defiant way creating the altercation underlying his Claim.
Faced with such behavior and defiance, Judge Katsanos was clearly acting within his judicial capacity and exercising his discretion when the confrontation arose with claimant, and the Court Officers acted directly and immediately in controlling claimant well within the scope of their authority to safeguard the dignity of the proceedings and the Judge. Under these circumstances, even deeming the Claim's allegations as true, claimant has failed to provide any facts divorcing his allegations from the judicial immunity doctrine (see Leibovitz v State of New York, UID No. 2015-047-132 [Ct Cl, Sherwood, J., Sept. 9, 2015]). There is no allegation in either the Claim or the opposing papers that the Judge exceeded his jurisdiction or that there was a clear absence of jurisdiction (see Montesano v State of New York, UID No. 2003-028-536 [Ct Cl, Sise, J., May 9, 2003]). "[L]iability may ensue only where a judge acts in the clear absence of all jurisdiction" (Murph v State of New York, 98 Misc.2d 324, 325 [Ct Cl, 1979], reh denied 105 Misc.2d 684 [Ct Cl, 1980]). As such, claimant's causes of action for malicious prosecution, unlawful arrest and the other intentional torts are absolutely barred insofar as they are premised on the conduct of a Civil Court Judge "since [his] judicial acts are cloaked with immunity," and must be dismissed (id.; see McAlester v Brown, 469 F.2d 1280, 1282 [1972]).
Nor has claimant sufficiently established claims for false arrest or malicious prosecution against the State to withstand this Motion to dismiss. Unlike an action for false arrest, which protects the personal interest of freedom from restraint of movement, "[t]he tort of malicious prosecution protects the personal interest of freedom from unjustifiable litigation" (Broughton v State of New York, 37 N.Y.2d 451, 457 [1975], cert denied sub nom Schanbarger v Kellogg, 423 U.S. 929 [1975]; see Leibovitz v City of New York, 14-CV-7106 [EDNY, Matsumoto, J., Mar. 2, 2018]). "'The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice'" (De Lourdes Torres v Jones, 26 N.Y.3d 742, 760 [2016], quoting Broughton, 37 N.Y.2d at 457 ; see also Martinez v City of Schenectady, 97 N.Y.2d 78, 84 [2001]; Diederich v Nyack Hosp., 49 A.D.3d 491, 493 [2d Dept 2008], lv dismissed in part and denied in part 11 N.Y.3d 862 [2008]). "The essence of malicious prosecution is the perversion of proper legal procedures" (Broughton, 37 N.Y.2d at 457).
While the Claim here alleges the first two elements of a malicious prosecution claim, the claimant failed to sufficiently allege the absence of probable cause and malice requirement. The Claim alleges in only the most conclusory manner that "there was no probable cause for the commencement or the continuation of the criminal proceedings" and that they "acted with actual malice" (Claim, at 34, ¶¶ 154, 155). Even if the "in the interest of justice" dismissal of the criminal charges could be considered a termination in favor of the claimant - a questionable premise here (Criminal Procedure Law § 170.40; see Smith-Hunter v Harvey, 95 N.Y.2d 191, 197 [2000]; Norton v Town of Brookhaven, 33 F.Supp.3d 215, 237 [EDNY 2014]), the claimant cannot establish the absence of probable cause. Indeed, probable cause for claimant's arrest became apparent due to his courtroom antics in front of the Judge and Court Officers as described in the Claim itself, as well as by his arraignment in Criminal Court and the filing of the Misdemeanor Complaint by the District Attorney, after its own investigation (see Broughton, 37 N.Y.2d at 458 ["evidence of a subsequent arraignment or indictment is admissible as some proof of the presence of probable cause"]; Leibovitz v City of New York, 14-CV-7106). The law is well-settled that a pretrial determination of probable cause "bars the cause of action for malicious prosecution" (Watson v City of Jamestown, 56 A.D.3d 1289, 1292 [4th Dept 2008]; see Diederich v Nyack Hosp., 49 A.D.3d at 493; Ellsworth v City of Gloversville, 269 A.D.2d 654 [3d Dept 2000]). Thus, even construing the Claim liberally, and according the claimant the benefit of every favorable inference, it fails to state a cause of action for malicious prosecution against the State.
To prevail on a cause of action for false arrest and imprisonment, "the [claimant] must demonstrate that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement, that the [claimant] did not consent to the confinement and that the confinement was not privileged" (De Lourdes, 26 N.Y.3d at 759; Leibovitz v City of New York, 14-CV-7106). "For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause" (id.; see Gisondi v Town of Harrison, 72 N.Y.2d 280, 283 [1988]; Broughton, 37 N.Y.2d at 458). Here, the claimant's false imprisonment claim fails for the same reason his malicious prosecution claim fails, namely, that claimant's arraignment and Misdemeanor Complaint created a presumption of probable cause which he failed to address in the Claim or otherwise rebut in opposition to the instant Motion.
Nor do the negligence or negligent hiring and retention claims survive dismissal. "[T]o establish a cause of action based on negligent hiring and retention, 'it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury'" (Kaul v Brooklyn Friends Sch., 220 A.D.3d 936, 937 [2d Dept 2023], quoting Shor v Touch-N-Go Farms, Inc., 89 A.D.3d 830, 831 [2d Dept 2011]). In this case, the Claim based upon the negligent hiring and retention of the Court Officers must fail because it failed to sufficiently allege factual averments of how or whether the State knew, or should have known, of a propensity on the part of the Court Officers to commit the alleged wrongful acts of falsely arresting, assaulting or maliciously prosecuting individuals, like claimant, appearing in the courtroom. The negligence based causes of action against the State thus fail (see Povoski v State of New York, UID No. 2014-041-501 [Ct Cl, Milano, J., Jan. 9, 2014]).
A similar result obtains for claimant's assault and battery claims (see Leibovitz v State of New York, UID No. 2015-047-129 [Ct Cl, Sherwood, J., Mar. 31, 2015]). Under New York law, an assault is an intentional placing of another person "in fear of imminent harmful or offensive contact," while battery refers to an intentional "wrongful physical contact" of another person without consent (Girden v Sandals Intern, 262 F.3d 195, 203 [2d Cir 2001]). However, it is well established that "[f]or both torts, the [claimant] must also show the defendant's conduct 'was not reasonable within the meaning of the New York statute concerning justification for law enforcement's use of force in the course of performing their duties'" (Torres-Cuesta v Berberich, 511 Fed.Appx. 89, 91 [2d Cir 2013], cert denied 134 S.Ct. 370 [2013], quoting Nimely v City of New York, 414 F.3d 381, 391 [2d Cir. 2005]). Claimant does not allege the use of any physical force, other that in "making bodily contact" which he finds "subjectively offensive" in his Notice of Intention or Claim, and the force used, if any, in placing the handcuffs on claimant was clearly privileged under State law (see id.; Penal Law § 35.30[1]).
Finally, the claimant agrees with the State in his Affidavit in Opposition that his cause of action alleging violations of the State Constitution must be dismissed (see Brown v New York State, 89 N.Y.2d 172, 177-178 [1996]; Waxter v State of New York, 33 A.D.3d 1180, 1181 [3d Dept 2006]). As claimant implicitly acknowledges, "while a private cause of action to recover monetary damages for state constitutional violations is permissible in certain limited situations, this narrow remedy does not apply where an adequate remedy is available to the claimant in an alternate forum" (Alsaifullah v State of New York, 166 A.D.3d 1426 [3d Dept 2018] [internal citations omitted]; see Blake v State of New York, 157 A.D.3d 1019, 1020 [3d Dept 2018]). Thus, his State constitutional claims must also be dismissed.
In accordance with the foregoing, the Court grants the State's Motion, and hereby dismisses Claim No. 139463 in its entirety.