Friday, August 17, 2012

Kevin Patrick Brady Is Forbidden From Filing Any Papers With The Court of Claims

Brady v State of New York, Inc.
2012 NY Slip Op 51560(U)
Decided on June 28, 2012
Ct Cl
Sise, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2012 
Ct Cl

Kevin Patrick Brady, Claimant, 


The State of New York, Inc., COUNTY OF MONROE, INC., VILLAGE OF EAST ROCHESTER, INC., and other john doe, defendants, Defendants.


For Claimant: 


For Defendants: 



Richard E. Sise, J.

The following papers were read on Movant's motion for permission to file a claim: 

1."Notice of Claim/Affidavit of Service" of Kevin Patrick Brady, pro se; 

2.Affirmation in Opposition of Thomas G. Ramsay, AAG; 

3.Letter brief captioned "Re: Affirmation in Opposition by Assistant Attorney General Thomas G Ramsay" of Kevin Patrick Brady, pro se; and 

4."Notice of Continuing Defaults" of Kevin Patrick Brady, pro se. 

Filed papers: None
Because of earlier events and rulings that were set forth, in detail, in a previous decision, Movant is required to obtain permission of the Supervising Judge or his designee before he can commence an action in this Court. (Brady v State of New York, et al., UID No.2007-028-559, [Ct Cl, Sise, P.J., July 16, 2007]). Consequently, his initial submission, captioned "Notice of Claim/Affidavit of Service", was accepted by the Chief Clerk as commencing a motion for permission to file a claim. [*2]
In his submission, Movant demands money damages in the sum of $1,000,000.00 from the several named Defendants to compensate for harm that, it is alleged, he has suffered because his several prior claims were dismissed and because they were dismissed in such a manner that precludes appeal to a higher court. Movant also asks that the Court suspend and abate all taxes owed on his real and personal property. Finally, he alleges that his rights guaranteed by the Fourteenth Amendment of the United States Constitution, specifically "free access to an uncorrupted forum, due process and equal protection under the law" have been violated.
Certain portions of the proposed claim must be stricken at the outset. The Court of Claims has jurisdiction over claims brought against the State of New York, its subdivisions and certain public authorities. It does not have jurisdiction to hear claims brought against any of the other Defendants who are named in the caption of the proposed claim: the County of Monroe, the Village of East Rochester, Inc., or "other john doe defendants". Also, with certain limited exceptions not relevant here, the Court of Claims does not have the power to grant equitable relief and thus could not, under any circumstances, suspend the imposition of taxes on an individual's personal and real property. Finally, no cause of action against the State of New York exists for alleged violations of an individual's rights secured by the United States Constitution (Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656), nor is the State a "person" amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]). Thus, the Court does not have jurisdiction to hear actions based on allegations that an individual's rights secured by the Fourteenth Amendment have been violated.
What remains is a proposed claim for money damages based on allegations that the Court of Claims has wrongfully dismissed previous claims that Movant has sought to file and that they were dismissed in such a way that those rulings could not be appealed. As a technical matter, the previous "dismissals" of which Movant complains were actually denials of motions for permission to file those claims.
There can be no dispute that in ruling on the prior motions for permission to file a claim, this Court was exercising its judicial function. The validity and viability of a cause of action based on allegations that such actions were wrongful, or even malicious, are well-settled and has been addressed on a number of previous occasions in connection with this movant's attempts to file claims in this Court. For example, in Brady v State of New York, et al., (UID No. 2008-028-507 [Ct Cl, Sise, P.J., Jan. 15, 2008]), the Court stated: 

The actions of judicial officers in carrying out their judicial function are entitled to absolute immunity from liability (Salzano v Town of Poughkeepsie, 300 AD2d 716 [2002]; Bardascini v Reedy, 51 AD2d 271, 272 [3d Dept 1976], lv denied 40 NY2d 803 [1976]). 

If an action is immune from liability, then there can be no award of money damages for any harm it may have caused. Consequently, the claim or proposed claim based on such allegations does not set forth a cause of action on which this Court can grant relief.
If the Court were to permit it to be filed, such a claim would be subject to immediate dismissal, with the only result being an additional waste of the Court's, the State's and Movant's [*3]own resources. It must be noted that filing claims in this Court requires payment of a $50.00 filing fee, whereas there is no fee for commencing a motion. Because Movant's attempts to file claims have been deemed to be motions for permission to file, he has actually realized considerable savings over the last several years.
Movant also objects that his claims have been dismissed "without requiring answers from the Department of Law attorneys" ("Notice of Claim," p 3). While it is true that the State has not had to file a document captioned "Answer," the Attorney General has nevertheless responded to each motion and to each proposed claim. In response to the instant motion, for example, Defendant sets forth clearly its several objections to the proposed claim, informing the Court and Movant of the affirmative defenses that would be raised if an answer were to be required. If a claim were to be filed, however, it is far more likely that these same defenses would be raised in a pre-answer motion to dismiss, because they are well-founded in settled law and jurisdictional in nature. For example, the defense based on judicial immunity is the same, and is equally determinative, whether it is raised in an answer, in a pre-answer motion, or in response to a motion for permission to file a claim: 

The doctrine of Judicial Immunity bars claims against Judges for their Judicial Acts, as well as claims against the State arising out of any alleged errors made by its Judges in a Judicial capacity. See Fuller v State of New York, Claim No. 107726, Motion M-75521, CM-7553, Schaewe, J., 1/20/09)], citing Murray v Brancato, 290 NY 52 [1943]; Jamieson v State [of New York], 7 AD2d 944 [3d Dept 1959; Kopeppe v City of Hudson, 276 App Div 443 [3d Dept 1950]; Harley v State [of New York], 186 AD2d 324 [3d Dept 1992], app dsm [sic] 81 NY2d 781 [1993]; Rossman v State [of New York, 40 AD2d 1046 [3d Dept 1972]. 

(Ramsay Affirmation, ¶ 7)
In short, Movant's problem is not that the Court will not permit a claim to be filed. His problem is that the causes of action he has sought to assert simply have no legal merit. The Court of Claims is a court of limited jurisdiction, and it has the power to grant only a certain type of relief. It may hear only certain types of actions (see Court of Claims Act §§ 9[2], [2-a], [3], [3-a], [9-a], [12], [13]). The powers of the Court of Claims include those necessary to carry out its functions, powers such as rule-making and perpetuating testimony, but it has only a limited and specific power to grant relief to a claimant: it may "render judgment in favor of the claimant or the state for such sum as should be paid by or to the state" (id., § 9[4]). In other words, this Court may only award money damages, and as a result its jurisdiction is limited to cases where such an award is a recognized remedy. Unless and until Movant submits a proposed claim that sets forth a cause of action for which money damages are an appropriate and permitted remedy, his efforts to file a claim in this Court will inevitably be unsuccessful.
In his papers, Movant asserts that this Court lacks discretion to deny (more accurately, to refuse to permit Movant to file) a "facially meritorious" claim. That statement is accurate. The claims Movant is attempting to file, however, are meritless. Furthermore, his conduct in repeatedly attempting to litigate the same issue is frivolous. For a definition of frivolity, Movant himself cites to the regulation governing costs and sanctions (22 NYCRR § 130-1.1[c][1]) which states that conduct is frivolous if it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law." This Court [*4]has followed well-established precedent in holding that actions for money damages against the State that are based on allegations of wrongdoing on the part of judicial officers who are engaged in carrying out their judicial functions are completely lacking in legal merit. It further concludes that Movant has made no "reasonable argument" for modifying or changing that existing law. If Movant disagrees with these holdings, his proper recourse is to appeal this order to a higher court.
Turning to that issue, Movant contends that the manner in which the Court has dismissed his earlier claims (more accurately, denied his motions for permission to file a claim) makes those rulings non-final and non-appealable: "Pro se Claimant has never been provided the means to make said dismissals appealable" (Notice of Claim, p 2). He cites no authority for this proposition, and the Court is not aware of anything that would prevent him from appealing this or any of the other motion decisions to the Appellate Division. CPLR 5501 provides that the Appellate Division "shall review questions of law and questions of fact on an appeal from a judgment or order of a court of original instance." This Decision and Order of the Court and the orders denying previous, similar motions are analogous to orders denying applications to file an untimely claim pursuant to Court of Claims Act § 10(6), and those orders are certainly appealable (see e.g. Matter of Magee v State of New York, 54 AD3d 1117 [3d Dept 2008]; Matter of Best v State of New York, 42 AD3d 699 [3d Dept 2007]). Most significantly, Movant himself has, on at least one occasion, appealed an order of this Court that denied him permission to file a claim. In Brady v State of New York (58 AD3d 992 [3d Dept 2009]) the Appellate Division, Third Department heard Movant's appeal of several of this Court's orders, one of which was a denial of a motion for permission to file a claim. The appellate court ruled on the appeal, affirming the orders on the opinions below. The Court finds no basis, therefore, for Movant's contention that he is somehow prohibited from appealing this order and orders similar to it.
Finally, although this issue has been discussed at length in earlier opinions, the Court will again address Movant's contention that by requiring him to obtain judicial permission before commencing an action, this Court is without authority and improperly interferes with his right to freely access the judicial system.
It is well-settled in both State and Federal practice that courts are not powerless to defend themselves from litigants who misuse the judicial system to wage their own personal, quixotic campaigns: "The court may enjoin a litigant who exhibits a history of vexatious litigation from filing further actions without leave of the court, where it determines that the litigant is likely to continue to abuse the judicial process and harass other parties'" (Green v McLaughlin, 374 Fed Appx 173, 175 [2d Cir 2010], quoting Safir v United States Lines, Inc., 792 F2d 19, 24 [2d Cir 1986]). In the view of some, courts actually have an "obligation to protect the public and the efficient administration of justice from individuals who have a history of litigation entailing "vexation, harassment and needless expense to [other parties]" and "an unnecessary burden on the courts and their supporting personnel" ' " (Lau v Meddaugh, 229 F3d 121, 123 [2d Cir 2000][emphasis supplied]).
In New York, as well, litigation may be enjoined when a litigant is "abusing the judicial process by hagriding individuals solely out of ill will or spite" (Sassower v Signorelli, 99 AD2d 358, 359 [2d Dept 1984]). The central inquiry is whether the individual is abusing the judicial process through vexatious litigation (Deshpande v Medisys Health Network, Inc., 70 AD3d 760, [*5]763 [2d Dept 2010], lv denied 14 NY3d 713 [2010]; see also IRB-Brasil Resseguros S.A. v Portobello Intl Ltd., 59 AD3d 366 [1st Dept 2009]; Miller v Lanzisera, 273 AD2d 866, 869 [4th Dept 2000]) and whether the litigation restrictions imposed are "not so burdensome as [to] deny the litigant meaningful access to the courts" (Fitzgerald v Field, 1999 WL 1021568, at *6 [SD NY 1999]). Where, as here, the only restriction being placed on Movant is that he allege a viable cause of action over which this Court has jurisdiction, one that would not be subject to immediate dismissal, the threshold he is required to meet is extremely low. As a practical matter, in fact, there is only minimal interference, if any, with Movant's access to the court. He is able to make his allegations, to obtain a response from the Defendant, to have the allegations considered and ruled upon by the Court, and to have appellate review of that decision. If the cause of action that he is asserting has no legal merit, then it is immaterial whether those steps occur in connection with a motion for permission to file a claim or a motion to dismiss a claim which has been filed. The result is the same.
Because the document accepted as his proposed claims fails to set forth a viable cause of action over which this Court has jurisdiction, Movant's motion for permission to file a claim is denied. RICHARD E. SISE Presiding Judge of the Court of Claims

Albany, New York June 28, 2012

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