Opinion
# 2013-030-513 Claim No. 121610 Motion No. M-82187
01-22-2013
CARLTON WALKER v. THE STATE OF NEW YORK
Synopsis
Pre-answer motion to dismiss granted. Case information
UID: 2013-030-513 Claimant(s): CARLTON WALKER Claimant short name: WALKER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121610 Motion number(s): M-82187 Cross-motion number(s): Judge: THOMAS H. SCUCCIMARRA Claimant's attorney: CARLTON WALKER, PRO SE HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant's attorney: BY: EDWARD J. CURTIS, JR. ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney: Signature date: January 22, 2013 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered on defendant's motion:
1, 2 Notice of Motion, Affirmation in Support by Edward J. Curtis, Jr., Assistant Attorney General and attached exhibits
3 Opposition to Defendant's Motion to Dismiss Plaintiff's Complaint by Carlton Walker, Claimant
4 Reply Affirmation by Edward J. Curtis, Jr., Assistant Attorney General and attached exhibits
5 Answer to Defendant's Reply Affirmation dated November 29, 2012 by Carlton Walker, Claimant
6 Filed papers: Claim
Carlton Walker alleges that State and Court personnel failed to transcribe a portion of the minutes of his criminal trial for presentation of a complete record on appeal, particularly with regard to his claims that his constitutional rights were violated by improper jury selection. [See Claim Number 121610]. Thus, he asserts, when the Appellate Division, Second Department denied his appeal in 1988 and affirmed his conviction [People v Walker, 143 AD2d 784 (2d Dept 1988)], they did not have the stenographic minutes containing the jury voir dire, just as the federal District court, reviewing a habeas corpus petition brought by claimant, did not have such minutes for review. [Walker v Senkowski, 769 F Supp 462 (ED NY 1991)]. No specific date of accrual is alleged in the claim, which was served on the Attorney General's Office on August 8, 2012, and filed in the Office of the Chief Clerk of the Court of Claims on the same date. Claimant alleges, however, that he learned in papers submitted April 25, 2012 by the State in another, unidentified proceeding, that the transcript of the jury voir dire did not exist. From this factual predicate, he alleges his constitutional rights have been violated and that there was misconduct on the part of State and Court personnel as well as his appellate counsel in his appeal from his 1985 murder conviction.
In this pre-answer motion to dismiss defendant seeks dismissal of the claim on several grounds, including lack of jurisdiction, collateral estoppel, and judicial immunity. Defendant argues that this Court lacks jurisdiction over the claim, in that it impermissibly asks for review of the actions of the Appellate Division and other courts. Additionally, the claim does not comply with the pleading requirements of Court of Claims Act §11(b) in that it does not "state the time when and place where such action arose, [and] the nature of same . . ." In this regard, although constitutional rights are alleged to have been violated, none are specified. Based on those dates that are supplied in the claim, defendant argues that any cause of action stated therein is untimely, as the claim - simultaneously filed with a notice of intention to file a claim in August 2012 - was filed more than 90 days after any cause of action accrued, and well past any statute of limitations period provided for under the Civil Practice Law and Rules in terms of the availability of late claim relief. See Court of Claims Act §§10(3) and (6).
Claims against the State for monetary damages arising out of negligent acts must be served upon the State within 90 days of accrual of the claim, unless a notice of intention has been timely served. Court of Claims Act §10(3).
In opposition, claimant argues that the State has misunderstood his claim and, quoting from his claim, states that it is not the actions of the Appellate Division he alleges were wrongful, but rather those of State personnel by failing to provide him with a complete record of his trial, thus violating his "constitutional and statutory rights" when he appealed from the judgment rendered on February 20, 1985. [Opposition to Defendant's Motion to Dismiss Plaintiff's Complaint by Carlton Walker, ¶¶ 6 and 7]. He argues, among other things, that State employees violated the Appellate Division's order, in not providing a record on appeal of sufficient completeness, and that he is "calling upon the Court [to] remedy the injury caused by employees and representatives of the State during judicial proceedings . . ." which he alleges is appropriate for consideration here. [Ibid., ¶15]. He further argues that the trial judge failed to settle the record as required, thus also denying him due process.
As noted by defendant, in the August 9, 1991 decision of the federal district court denying claimant habeas corpus relief - which had been premised in part upon claimant's contention in his petition that both the prosecution and his own counsel's elimination of all prospective black jurors violated his constitutional rights - the court stated in a footnote "in state court, unless the defendant requests that the jury voir dire be transcribed it is not done". Walker does not "allege that he had ever made such a request." Walker v Senkowski, 769 F Supp 462, 464 (ED NY 1991). For this Court's purposes since neither claimant - nor his attorney for that matter - requested transcription of the jury voir dire, no clerk failed to perform a ministerial duty in the first place.
Preliminarily, even assuming that claimant's own awareness of any failure to transcribe the jury voir dire would furnish a basis for saying that his claim accruedat that time, claimant was aware that such transcription had not been performed in 1991. The Court rejects claimant's characterization of such purported failure as a continuing wrong, extending the accrual date. See e.g. Selkirk v State of New York, 249 AD2d 818, 819 (3d Dept 1998).
A claim accrues under the Court of Claims Act when damages are "reasonably ascertainable." Augat v State of New York, 244 AD2d 835,836 (3d Dept 1997), lv to appeal denied, 91 NY2d 814 (1998).
Defense objections based upon failure to timely serve and file a claim must be raised with particularity in the answer or by a motion to dismiss before service of the responsive pleading, pursuant to Court of Claims Act §11(c). Here, defendant has raised the timeliness objection in a pre-answer motion made prior to the expiration of its time to answer the claim, and the untimeliness of the claim is apparent on its face. At its root, the claim concerns matters that were beyond the scope of judicial review some time ago. Any defects in the proceedings would more properly be raised in the context of the appellate process, and not by what can only be viewed as a collateral attackin the Court of Claims. See e.g. Larocco v State of New York, UID No. 2006-032-044 (Ct Cl, Hard, J., May 10, 2006).
Indeed, in the most recent reported iteration of Mr. Walker's litigation pursuits, the federal district judge listed all the proceedings claimant has brought related to his conviction, including denial of his direct appeal and several petitions for a writ of habeas corpus in federal court, inclusive of his continued claim concerning an alleged failure to transcribe the jury voir dire. Walker v Cuomo, ___F Supp___, 2012 WL 4490760 (ED NY 2012) mot to amend denied 2012 WL 5386218 (ED NY 2012).
Judicial immunity applies not only to judges themselves, but is extended to non-judicial personal who are integral parts of the judicial process. No cause of action is stated with regard to the alleged actions or omissions of court personnel. Mosher-Simons v County of Allegany, 99 NY2d 214 (2002); Weiner v State of New York, 273 AD2d 95 (1st Dept 2000); see generally Signature Health Center, LLC v State of New York, 28 Misc 3d 543, 553 (Ct Cl 2010), affd 92 AD3d 11 (3d Dept 2011), leave to appeal denied 19 NY3d 811 (2012). Alternatively, acts of non-judicial personnel would also generally be shielded by governmental immunity, and cannot render the State liable for ministerial negligence unless there is a "special relationship" between the parties, giving rise to a "special duty" owed to the injured party by the State. See McLean v City of New York, 12 NY3d 194, 199 (2009); Dinardo v City of New York, 13 NY3d 872 (2009), see also Metz v State of New York, 20 NY3d 175 (2012). No elements of such special relationship or duty are made out here.
Wherein it was noted, among other things, that negligent ministerial errors are shielded by governmental immunity absent a finding of special duty, and that earlier case law providing otherwise was seemingly abrogated by McLean v City of New York, infra, and its progeny.
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To the extent claimant has alleged violations of his federal constitutional rights, a cause of action under the federal constitution is not cognizable in this Court. Carver v State of New York, 79 AD3d 1393, 1395 (3d Dept 2010) leave to appeal denied, 17 NY3d 707 (2011); Lyles v State of New York, 2 AD3d 694, 696 (2d Dept 2003), affd on other grounds 3 NY3d 396 (2004); see also e.g. Jackson v State of New York, UID No. 2011-031-059 (Ct Cl, Minarik, J., Dec. 20, 2011).
To the extent that the claim may be read to assert a State constitutional tort, claimant has failed to allege facts that establish a constitutional violation, [see Brown v State of New York, 89 NY2d 172, 177 (1996)] and has "fail[ed] to demonstrate how money damages are appropriate to ensure full realization of [his] asserted constitutional rights." Martinez v City of Schenectady, 97 NY2d 78, 84 (2001). Claimant may have pursued an adequate alternative remedy in State Supreme Court in the a nature of a mandamus to compel settlement of the record in an article 78 proceeding, for example.
Based on the foregoing, defendant's pre-answer motion to dismiss is in all respects granted, and claim number 121610 is hereby dismissed.
January 22, 2013
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims