Fonfa v. State
| Decision Date | 04 August 1976 |
| Docket Number | No. 59698,59698 |
| Citation | 388 N.Y.S.2d 65,88 Misc.2d 343 |
| Parties | Stanley FONFA, Claimant, v. The STATE of New York and the Sheriff of the City of New York, Defendants. Claim |
| Court | New York Court of Claims |
Siller & Galian, New York City (Sidney S. Vener, New York City, of counsel), for claimant, in opposition.
Louis J. Lefkowitz, Atty. Gen. (Asst. Atty. Gen., Seth D. Corwin of counsel), for defendant The State of New York, for the motion.
The State of New York, one of the defendants, moves to dismiss the claim (CPLR, Rule 3211(a), subds. 2 and 7) because (a) the pleading fails to state a cause of action against the movant and (b) the same was untimely filed in the office of the Clerk of this court and untimely served on the Attorney General ( §§ 10 and 11, Court of Claims Act).
The claim was filed on October 17th, 1975. It was served on the Attorney General on October 22nd, 1975. Claimant demands $5,010,000.00 for his alleged illegal detention, arrest, incarceration and confinement 'in criminal penal institutions, without just or legal cause, or authority' ( 3 of claim).
In claimant's opposing affidavit he avers that as a judgment debtor, he was 'detained' on April 18th, 1975 by two deputies of the Sheriff of the City of New York, the other defendant herein, pursuant to a warrant issued under the authority of our state's Judiciary Law §§ 756, 757, 770, 772, 773, 774 and 775. The cited sections are part of the statutory provisions for supplementary proceedings to collect money judgments.
A reading of the pleading (with every intendment liberally favorable to claimant) does not disclose a clear basis for the claimed liability of the state. The explanation in the opposing affidavit is claimant's statement ( 8) that he was 'caused to suffer civil liabilities (sic) at the instance of the State of New York by its promulgation and implementation of the hereinabove unconstitutional Statutes.' On the oral argument, claimant's counsel maintained (without submission of a brief) that the state should be liable to claimant because our Legislature enacted unconstitutional and punitive statutes, pursuant to which claimant was arrested and confined in jail.
Mr. Fonfa was imprisoned for about three months until either July 17th, 1975 (the date pleaded in 3 of this claim) or until July 23rd, 1975 (the date stated in his opposing affidavit). This factual disparity would be crucial to a determination of the timeliness of the service and of the filing of the claim. However, that need not be resolved now in view of my legal conclusion that claimant has no cause of action against the defendant State as pleaded or as amplified on the motion.
Claimant relies heavily on Vail v. Quinlan, 406 F.Supp. 951 (Jan. 1976). This was a class action instituted under the Civil Rights Act in the United States District Court, Southern District of New York (74 Civ. 4773). There were three named plaintiffs, all judgment debtors acting 'on behalf of themselves and all other persons similarly situated'. The defendants were the Sheriff of Dutchess County, two Dutchess County judges and three judgment creditors. A three-judge court was convened (387 F.Supp. 630) pursuant to 28 U.S.C. § 2281. That court (Lumbard, C.J., MacMahon, D.J., and Cannella, D.J.) declared that those seven sections of our state's Judiciary Law were unconstitutional, being violative of the due process clause of our country's 14th Amendment, and enjoined further application of the contaminated sections.
The appeal therefrom, directly to the Supreme Court of the United States, has not been argued. In the interim, Mr. Justice Thurgood Marshall granted a stay of the injunctive provisions of the order appealed from.
Within a few months after the Vail decision the Appellate Division, Second Department, decided Walker v. Walker, 51 A.D.2d 1029, 381 N.Y.S.2d 310 (1976). There the plaintiff-appellant attacked § 245 of our Domestic Relations Law dealing with contempt proceedings to enforce a judgment or order in a divorce action. Appellant asserted that the section denied him due process and that the Vail decision was controlling. The Appellate Division's memorandum stated at page 1030, 381 N.Y.S.2d at page 311 that:
'* * * it is clear that this court is not bound by that (Vail) determination (United States ex rel. Lawrence v. Woods, 7 Cir., 432 F.2d 1072; 8 N.Y. Jur., Constitutional Law, § 45; and see a discussion of this issue in the dissenting memorandum of SHAPIRO, J., in Matter of Greenwald v. Frank, 47 A.D.2d 628, 631, 363 N.Y.S.2d 955, 961).'
The Appellate Division deemed it not necessary 'to determine the correctness of the Vail decision', because in Walker (page 1030, 381 N.Y.S.2d page 311):
At bar, claimant does not demonstrate how the factual situation in Vail was similar or analogous to his own predicament. His opposing affidavit merely states: Nowhere does he set forth whether there was a hearing, whether he was aware of the possible consequences to him and whether he had been represented by counsel.
For the present purposes of this motion, I shall assume (but not decide) that the attacked statutes were unconstitutional. On that basis, the legal question becomes: In this court of limited jurisdiction, can the state be held liable for its enactment of statutes later declared unconstitutional? My answer is: No.
Historically, in this state our court was preceded by a Board of Claims. Over 60 years ago, the Appellate Division, Third Department, had affirmed the Board's award of damages to forest owners for destruction of trees by beaver. The state appealed to the Court of Appeals which reversed and dismissed the claim.
The opinion of Andrews, J., writing for that unanimous court in Barrett v. State of New York, 220 N.Y. 423, at page 425, 116 N.E. 99, at page 100 (1917), began:
'Because of their value they were relentlessly killed, and by the year 1900 they were practically exterminated. * * *
'In that year the legislature undertook to afford them complete protection, and there has been no open season for beaver since the enactment of chapter 20 of the Laws of 1900.
and then declared at page 429, 116 N.E. at page 101 that:
'* * * the legislature did not exceed its powers. * * *
The Board of Claims had been established by L.1883, ch. 205. That entity became the Court of Claims (L.1897, ch. 36) with Judges instead of commissioners. There was a 'Court of Claims Act' established by the Laws of 1920, chapter 922, which, as amended, was repealed in 1939 and reenacted as the present Court of Claims Act (L.1939, ch. 860).
Section 8 of the Act contains the state's waiver of 'immunity from liability...
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