Brody v. Leamy

• Decision Date: 28 February 1977
• Citation: 90 Misc.2d 1,393 N.Y.S.2d 243
• Parties: Ira Jerome BRODY, Plaintiff, v. P. J. LEAMY, Defendant.
• Court: New York Supreme Court

Page 243

393 N.Y.S.2d 243

90 Misc.2d 1

Ira Jerome BRODY, Plaintiff, v. P. J. LEAMY, Defendant.

Supreme Court, Dutchess County.

Feb. 28, 1977.

Kent L. Mardon, Poughkeepsie, for defendant.

Denis J. McClure, Poughkeepsie, for plaintiff.

DECISION

JOSEPH F. GAGLIARDI, Justice.

Defendant's motion to dismiss the complaint, wherein a federal civil rights cause of action is asserted, raises a host of complex issues.

THE PLEADINGS

The within complaint predicates jurisdiction in this court under the Supremacy Clause of the Federal Constitution (Article VI, clause 2) and Title 42, section 1983 of the United States Code. The claim is for monetary redress in the sum of $500,000 for alleged deprivation of plaintiff's civil rights. The allegations state that on September 5, 1975, plaintiff was stopped on a state parkway in Dutchess County by the defendant, a member of the New York State Police Department, and was issued two simplified traffic informations--one for failure to affix a registration sticker, and one for speeding. Ten minutes later defendant stopped plaintiff again, 'assaulted, physically affronted, searched and maniculed (sic)' plaintiff, who was then 'pushed' into the patrol car which was driven at 'dangerously high rates of speed . . . negligently, carelessly, recklessly', putting plaintiff 'in fear of his life'. Plaintiff was then 'manhandled' by defendant just prior to plaintiff's appearance before a magistrate, whereupon he was released on $40 bail, although defendant issued two more uniform traffic tickets for speeding and failure to signal on change of lanes. The complaint further alleges:

'All of the above acts were performed by the Defendant, P. J. Leamy, under color of the laws of the State of New York, in Suit was commenced by service of the instant summons and complaint on September 3, 1976. ¹ Two days prior thereto plaintiff sued the State of New York, defendant's employer, in the New York Court of Claims, for the events in question. The claim filed there indicates that on May 1, 1976, plaintiff was found guilty after trial in a local criminal court (Justice Court, Town of Stanford, Dutchess County) on certain of the simplified traffic informations and was fined the sum of $200. Plaintiff sued for $275,000, of which sum $250,000 was claimed as punitive damages. The record also reveals that plaintiff is a self employed businessman residing in New York County.

violation of Title 42, United States Code, Section 1983, in that said acts were excessive, unnecessary, unwarranted, unjustified, without cause or probable cause, wilfully, wantonly, maliciously, intentionally and with clear intent to deprive the Plaintiff of the rights, privileges and immunities secured to him under the Constitution of the United States of America, Acts of the Congress of the United States of America, which provide for the equal rights of citizens of the United States, and which rights, privileges and immunities are guaranteed by the due process clauses of the Constitution of the United States of America and Title 42, United States Code, Section 1983, et seq.'

THE MOTION

Pursuant to subdivision 2 of Section 17 of the Public Officers Law, the State Attorney General has assumed defense of the instant action and, prior to service of an answer, has moved, as indicated in the motion note of issue, to dismiss the complaint for lack of subject-matter jurisdiction (CPLR 3211(a) (2)), another action is pending between the same parties for the same relief (CPLR 3211(a)(4)) and the complaint fails to state a cause of action (CPLR 3211(a)(7)). Plaintiff's counsel offered opposition by affirmation which appeared to be in the nature of a cross-motion dismissing the instant motion. Said affirmation will be deemed an affidavit in opposition.

By interim decision dated November 10, 1976, the Court gave notice of its intent to convert the motion into one for summary judgment. Additional affidavits, memoranda and documents were submitted to the court, and the matter deemed fully submitted on December 29, 1976.

Plaintiff has submitted an affidavit of merits that merely recites the allegations contained in the complaint. Attached to plaintiff's Notice of Intention to File a claim in the Court of Claims is an 'Accounting of Events', wherein plaintiff states that his wife and maid were with him in the vehicle and witnessed some of the events alleged. Plaintiff also annexed a copy of his bill of particulars filed in the Court of Claims which reveals that the two occurrences involved were separated by only three minutes, that he was convicted after trial in the Justice Court, Town of Stanford, on June 23, 1976, for speeding and fined $200, that he was convicted after trial in the Justice Court, Town of Clinton, on October 4, 1976, for failure to signal while changing lanes and was fined $50. Notices of Appeal from both convictions have been filed with the Appellate Term Defendant, in an affidavit of merits, states that he has been a New York State Trooper since May 6, 1968, and prior to September 5, 1975, had issued approximately 3,000 traffic tickets and never been the subject of a personnel complaint or defendant in a lawsuit arising out of police activities. The affidavit further reveals that the two remaining traffic citations (speeding and failure to properly display registration sticker) are pending in the Justice Court, Town of Pleasant Valley. Defendant also states that upon arresting plaintiff, he was required by departmental directive to handcuff him while transporting him to the magistrate. Defendant denies the essential allegations of assault and driving recklessly.

Ninth and Tenth Judicial Districts, and leave to extend the time to perfect the appeals for the February 1977 Term had been granted, but the appeals were dismissed on February 1, 1977, for failure to perfect them.

Copies of the records maintained by the Justice Courts of Clinton and Stanford have been submitted for the court's consideration. The Stanford records merely consist of the record of conviction for speeding after a nonjury trial and verification thereof by the court clerk and town justice. The records of the Clinton Court are more complete and contain the town justice's typed trial notes which reveal that plaintiff had brought his own stenographer, but his counsel refused the opportunity to transcribe the testimony. The trial notes reveal that five tickets were issued by defendant on September 5, 1975, one of which was to plaintiff's wife, but the record herein is otherwise silent thereon. Defense counsel there (plaintiff's counsel here) was permitted to fully explore the events in question that resulted in the issuance of the tickets. After hearing the testimony of plaintiff and defendant, the court, sitting without jury, found plaintiff herein guilty of failing to signal while changing lanes.

SUBJECT MATTER JURISDICTION

The assistant attorney general argues that the State is the real party in interest, and a suit against it in state court can only be heard in the Court of Claims. This argument, however, is more directly related to that branch of the motion concerning the alleged failure to state a cause of action. In reality, the primary question raised, as briefed by plaintiff, is whether any court of this state has jurisdiction to entertain a claim under Section 1983, 42 U.S.C.

'It is a well-settled rule that subject matter jurisdiction, otherwise nonexistent, may not come into being through waiver or estoppel (Matter of Newham v. Chile Exploration Co., 232 N.Y. 37, 133 N.E. 120). It may not be conferred by consent or agreement of the parties, and the objection as to lack of subject matter jurisdiction may be raised at any time' (Verney v. Verney, 53 A.D.2d 608, 383 N.Y.S.2d 905). Thus, subject matter jurisdiction cannot be vested in the courts of this state by consent (Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324, 19 N.E. 625, 627) and this rule applies with equal force in the Court of Claims (Application of Senitha v. McGurk, 252 App.Div. 304, 299 N.Y.S.2d 407, affd. 284 N.Y. 730, 31 N.E.2d 200). Subject matter jurisdiction is lacking where the court enters a judgment which, by the law of its creation, it had no authority to make (Murphy v. Itcha Realty Corp., NYLJ 5/21/71, p. 19, col. 6 (Sup.Ct.West.Cty.)). 'Absence of competence to entertain an action deprives the court of 'subject matter jurisdiction'; absence of power to reach the merits does not' (Lacks v. Lacks, 41 N.Y.2d 71, 75, 390 N.Y.S.2d 875, 877--78, 359 N.E.2d 384, 387; see Barclay's Ice Cream Co., Ltd. v. Local No. 757, 41 N.Y.2d 269, 392 N.Y.S.2d 278, 360 N.E.2d 956, 1977; Nuernberger v. State of N.Y., 41 N.Y.2d 111, 390 N.Y.S.2d 904, 359 N.E.2d 412).

If the State is the real party in interest, its waiver of sovereign immunity embodied in Section 8 of the Court of Claims Act authorizes suit against it only in the Court of Claims (N.Y. State Const. Art. 6, § 8; Breen v. Mortgage Commission of N.Y., 285 N.Y. 425, 35 N.E.2d 25; 55 N.Y.Jur., State of New York, §§ 193--95; see Davidson The United States Supreme Court has held that, in the absence of a 'valid excuse' (Douglas v. New Haven R. Co., 279 U.S. 377, 388, 49 S.Ct. 355, 73 L.Ed. 747; Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143), the state courts cannot deny access to litigants on federal causes of action where such denial is 'based solely upon the source of law sought to be enforced' (McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 234, 54 S.Ct. 690, 692, 78 L.Ed. 1227; see Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967; Grubb v. Public Utilities Comm., 281 U.S. 470, 476, 50 S.Ct. 374, 74 L.Ed. 972; Clafin v. Houseman, 93 U.S. 130, 23 L.Ed. 833). The guiding principle has been cogently summarized in Dowd Box Co. v. Courtney (368 U.S. 502, 507--08, 82 S.Ct. 519, 522--23, 7 L.Ed.2d 483):

Claims against the State of New York (1954) passim). However, the State's waiver of...