Summary
In Schanbarger v. Kellogg (35 A.D.2d 902) this court held that the defendants therein were acting in a quasi-judicial capacity and, thus, were entitled to the defense of absolute immunity from suit.
Summary of this case from Cunningham v. StateOpinion
November 30, 1970
Appeal from an order of the Supreme Court at Special Term, entered July 2, 1970 in Rensselaer County, which granted a motion to dismiss the complaint as to defendants, David Garvey and Frederic Morgenstern. In the early morning of April 30, 1968 defendant, Robert Kellogg, State Trooper, arrested appellant in the Town of East Greenbush, County of Rensselaer, and charged him with violation of subdivision 6 of section 240.35 Penal of the Penal Law (loitering). On May 15, 1968 appellant appeared in Justices' Court for trial of the charge, at which time respondent Garvey, an Assistant District Attorney for Rensselaer County made a motion for a psychiatric examination of the appellant which motion was granted, and appellant was examined on May 22, 1968 by respondent Dr. Frederic Morgenstern. Thereafter, a trial was held in Justices' Court, and appellant was found guilty and fined $10. Upon appeal, the Court of Appeals held that the information under which appellant was tried was insufficient; that the testimony at the trial was also insufficient; and the judgment was reversed, and the information dismissed. ( People v. Schanbarger, 24 N.Y.2d 288.) Appellant's complaint contains two causes of action against Garvey and Morgenstern alleging malicious prosecution; abuse and perversion of process for psychiatric examination; and invasion of privacy and seeks both compensatory and punitive damages. The main issue on this appeal is whether or not respondents are entitled to the defense of absolute privilege from suit. Since the causes of action alleged in the complaint are subject to a motion to dismiss for insufficiency, the defense of privilege need not be first alleged. ( Salomon v. Mahoney, 271 App. Div. 478, affd. 297 N.Y. 643; Manceri v. City of New York, 12 A.D.2d 895; Zimmerman v. City of New York, 52 Misc.2d 797.) An Assistant District Attorney is a quasi-judicial officer and, as such, he, as well as all persons acting under his direction and control, are immune from civil suit for official acts performed by them in the investigation and prosecution of the crime with which appellant was charged, even if it be assumed that they acted maliciously to the injury and damage of appellant. "The doctrine of immunity based on official privilege is recognized in this State, being based upon `consideration of public policy and to secure the unembarrassed and efficient administration of justice and public affairs' * * *. The desirability of such a policy is easily recognized as essential in the conduct of official business." ( Cheatum v. Wehle, 5 N.Y.2d 585, 592-593.) The case of Manceri v. City of New York ( supra) held that "It is also clear that the defendant in the exercise of his official duties as Assistant District Attorney performs quasi-judicial functions. (See 13 N.Y. Jur., 179-180; People v. Fielding, 158 N.Y. 542, 547; Matter of McDonald v. Goldstein, 273 App. Div. 649, 651; Yaselli v. Goff, 12 F.2d 396, 404, affd. 275 U.S. 503; Gregoire v. Biddle, 177 F.2d 579-580, cert. den. 339 U.S. 949.) Within such functions are included the acts of such an official in the investigation of criminal charges and interrogation of persons in connection therewith." Consequently, the functions performed by the Assistant District Attorney are privileged as acts carried out in the course of his employment. So, too, are the acts here performed by the medical examiner in the conduct of his court-ordered psychiatric examination of appellant. His position, the nature of his duty, the degree of his responsibility and the circumstances involved lead to the conclusion that he was acting in a quasi-judicial capacity. ( Rottkamp v. Young, 21 A.D.2d 373, 376, affd. 15 N.Y.2d 831; see Code Crim. Pro., § 661.) Order affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.