Opinion
# 2018-038-603 Claim No. 131209 Motion No. M-92827
12-21-2018
FRANK MAKI v. CURRENT OR FORMER JUSTICES; SHARON A.M. AARONS BECKER CHRISTINE CLARK JANET DiFIORE MOLLY FITZGERALD LAHTINEN MICHAEL C. LYNCH ROSE STATE OFFICERS; MONICA A. DUFFY JEAN M. SAVANYU STATE OF NEW YORK
FRANK MAKI, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Aaron J. Marcus, Assistant Attorney General
Synopsis
Claimant’s motion to treat Notice of Intention as claim is denied because Notice of Intention was not submitted in support of the motion. Motion to reargue is granted and upon reargument, the Court adheres to its prior decision and order.
Case information
| UID: | 2018-038-603 |
| Claimant(s): | FRANK MAKI |
| Claimant short name: | MAKI |
| Footnote (claimant name) : | |
| Defendant(s): | CURRENT OR FORMER JUSTICES; SHARON A.M. AARONS BECKER CHRISTINE CLARK JANET DiFIORE MOLLY FITZGERALD LAHTINEN MICHAEL C. LYNCH ROSE STATE OFFICERS; MONICA A. DUFFY JEAN M. SAVANYU STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131209 |
| Motion number(s): | M-92827 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant’s attorney: | FRANK MAKI, Pro se |
| Defendant’s attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant’s attorney: | |
| Signature date: | December 21, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, whose claim was dismissed by decision and order of this Court (see Maki v Current Justices, et al., UID No. 2018-038-567 [Ct Cl, DeBow, J., July 16, 2018]), moves: (1) for permission to treat the notice of intention as a claim, and (2) to reargue the Court’s prior decision and order that dismissed the claim. The claim alleged that contracts into which he entered with the judicial system were breached by justices of the Supreme Court, Delaware County, the Appellate Division, Third Department, and the Court of Appeals, as well as by employees of the Third Department’s Committee on Professional Standards and the Commission on Judicial Conduct. Defendant has submitted opposition to the motion, and claimant has replied thereto.
A motion seeking permission to treat the notice of intention to file a claim as the claim under Court of Claims Act § 10 (8)(a) shall not be granted unless, inter alia, the notice of intention “contains facts sufficient to constitute a claim.” Here, although claimant asserts that the notice of intention that he allegedly served “contains all of the elements required of a claim under Court of Claims Act § 11” (Maki Affidavit, p.1), and defendant argues that the notice of intention is jurisdictionally deficient (Marcus Affirmation, ¶¶ 10-11), neither party appended a copy of the notice of intention to this motion. In the absence of that necessary document, the motion to treat it as a claim cannot be granted.
That branch of claimant’s motion that seeks leave to reargue should be based upon arguments that the court previously ruled incorrectly upon the submissions that were before it, and such a motion is addressed to the discretion of the Court (see Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]). The motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]), and it “is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted” (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]; see also Rubinstein v Goldman, 225 AD2d 328 [1st Dept 1996], lv denied 88 NY2d 815 [1996]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv denied, lv dismissed 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558, 568 [1st Dept 1979]).
In its prior decision and order, the Court granted defendant’s motion to dismiss the claim on the grounds that defendant’s agents were entitled to judicial immunity, and that the Court lacked subject matter jurisdiction over the claim. Claimant’s lengthy and meandering submissions in support of his motion to reargue consist mainly of arguments that were previously asserted on defendant’s motion to dismiss, or raise legal arguments that claimant did not previously raise. However, inasmuch as claimant argues that the Court misapplied applicable law, misconstrued the nature of the claim and overlooked legal issues in reaching its decision, the Court will exercise its discretion to grant claimant’s motion seeking reargument (see Matter of Ellsworth v Town of Malta, 16 AD3d 948, 948 [3d Dept 2005] [motion to reargue properly made where it asserted that the Court “overlooked significant facts or misapplied the law in its original decision”]). Upon reargument, however, the Court is unpersuaded that it misapplied the law, or overlooked pertinent matters of fact or law that were presented on defendant’s motion to dismiss the claim.
Claimant argues that the Court failed to accord the claim a liberal construction that applies to a motion to dismiss a claim for failure to state a cause of action under CPLR 3211 (a)(7) in concluding that the claim against the named judges should be dismissed. To be sure, on a motion to dismiss for failure to state a cause of action,
“claimant’s claim is liberally construed and all facts asserted therein . . . are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant’s failure to state a claim (see CPLR 3211[a][7]) . . . the dispositive inquiry is whether it 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” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827).”
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). However, granting the claim a liberal reading and accepting all of the facts pleaded in the claim as true, the Court adheres to its prior decision that the claim fails to state a cause of action against the named judges.
“It is well settled that a judge is immune from civil liability for acts done in the exercise of his or her judicial function” and that “[t]here are two recognized exceptions to the broad cloak of judicial immunity, namely 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” (Best v State of New York, 116 AD3d 1198, 1199 [3d Dept 2014] [internal quotation and other punctuation marks omitted]). As noted in the Court’s prior decision and order, the allegations in the claim challenge the manner in which certain judges acted in the matters before them, and accordingly judicial immunity applies. Although the claim alleges that the judges or courts “proceeded without subject matter jurisdiction” (see Claim number 131209, ¶ 4 [f]), it does not include any basis for this summary assertion, nor does it assert that the courts lacked authority to hear the actions and appeals giving rise to this claim. Rather, as noted in the prior decision, the claim asserts that the manner in which the actions were disposed of was improper, but it does not assert that the courts lacked jurisdiction to entertain his claims. Accordingly, claimant has failed to convince the Court that it misapplied the law in concluding that the claim failed to state a cause of action because it contained no allegations that the named judges were acting in the absence of jurisdiction (see Davey v State of New York, 31 AD3d [2d Dept 2006]; Best v State of New York, supra).
Claimant also argues that the Court’s prior conclusion that it is without subject matter jurisdiction over the claim miscontrues the nature of his claim. However, “whether the instant action constitutes one for money damages is not determined by how claimant characterizes it in his pleadings, but on the actual issues presented” (Sidoti v State of New York, 115 AD2d 202, 203 [3d Dept 1985]). Although the claim is dressed up as a claim for money damages sounding in breach of contract and violation of General Business Law § 349 (h), it essentially seeks to review allegedly improper decisions made by judges and non-judicial personnel in the performance of their official duties. Thus, as noted in the prior decision and order, claimant’s remedy, if any, would have been through direct appeals from the court decisions or a CPLR article 78 proceeding.
Claimant’s argument that a “prima facie case is made by the [claim] which shifts the burden of persuasion onto defendants to show proof that is false” (Maki Affidavit, p.4) is inapplicable to defendant’s motion to dismiss pursuant to CPLR 3211 (compare CPLR 3212). Similarly, claimant’s argument that the affirmation of the Assistant Attorney General was not made with personal knowledge is impertinent because defendant’s motion to dismiss for failure to state a cause of action does not require an evidentiary showing (compare Santoro v Oppman, 150 AD2d 850 [2d Dept 1989] [defendant failed to submit an affidavit of persons having personal knowledge in support of motion to amend answer to add defense of immunity]). Claimant’s argument that the Court misapplied the law in concluding that it lacked jurisdiction to grant relief in the nature of declaring void judicial decisions or ordering investigations is unpersuasive, as such relief is strictly and purely equitable. Lastly, the Court’s conclusion that the claim was jurisdictionally defective under Court of Claims Act § 11 (b) because it failed to allege any accrual dates for the alleged misconduct by the judges named in the claim is not affected by claimant’s assertion that allegations in the claim were overlooked.
Accordingly, it is
ORDERED, that that branch of defendant’s motion number M-92897 that seeks permission to treat the notice of intention to file a claim as the claim is DENIED; and it is further
ORDERED, that that branch of defendant’s motion number M-92897 that seeks reargument of the Court’s July 16, 2018 decision and order dismissing claim number 131209 is GRANTED IN PART; and it is further
ORDERED, that upon reargument, the Court adheres to the prior decision and order.
December 21, 2018
Saratoga Springs , New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 131209, filed March 28, 2018; (2) Notice of Motion, dated September 12, 2018; (3) “Affidavit” of Frank Maki in Support of Motion to Reargue and to Deem the Notice of Intention to File a Claim a Notice of Claim, witnessed September 12, 2018; (4) Verification of Frank Maki, witnessed September 12, 2018; (5) Affirmation of Aaron J. Marcus, AAG, dated September 26, 2018; (6) Reply “Affidavit” of Frank Maki, witnessed October 2, 2018; (7) Verification of Frank Maki, witnessed October 2, 2018. (8) Decision and Order in Maki v State of New York, UID No. 2018-038-567 (Ct Cl, DeBow, J., July 16, 2018), and papers considered thereon.