Kitchner v. State, 58698
| Decision Date | 10 July 1975 |
| Docket Number | No. 58698,58698 |
| Parties | Ogden R. KITCHNER, Claimant, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
Odgen R. Kitchner, pro se.
Louis J. Lefkowitz, Atty. Gen. by Walter J. Matt, Asst. Atty. Gen., for the State.
On September 9, 1974, the Claimant, Ogden R. Kitchner, filed a Claim against the State of New York alleging:
a. Ordinary Negligence, Gross Negligence, and Wanton Negligence.
b. Defamation of Character.
c. Dereliction of Duty . . . .
The Claimant moved on March 10, 1975 to amend his Claim. The motion was opposed by the State, which cross-moved to dismiss the Claim. Both motions were heard on May 6, 1975. At that time the Court granted the Claimant's motion and reserved decision on the State's cross-motion.
The gravamina of the amended Claim remain the same as set forth in the original Claim. They arose from the Claimant's unsuccessful attempt at obtaining unemployment benefits. Section 626 of the Labor Law provides that: '(t)he procedure herein provided for hearings before referees . . . shall be the sole and exclusive procedure . . ..' The appellate procedure for claims disputes is contained in § 621 and § 624 of the Labor Law. The former section provides for a review of referees' decisions by an appeal board; the latter section provides for review of the appeal board's decision by the Appellate Division of the Supreme Court.
After the adverse determination by the referee, the Claimant followed the appellate procedure hereinbefore noted. On both levels the referee's decision was affirmed. The Claimant, displeased with the results manifested his displeasure by collaterally attacking the decision in the present forum.
In Saffiotti v. State of New York, 36 A.D.2d 666, 318 N.Y.S.2d 238, the Appellate Division of the Third Department was called upon to decide whether the Court of Claims had erroneously denied a motion for permission to file a late Claim. The Claim sought to collaterally attack a determination rendered by a referee in an unemployment benefit case. The Court after holding that the Court of Claims lacked subject matter jurisdiction because the Claim had been submitted more than two years from its accrual stated: '(m)oreover, appellant's exclusive procedure for reviewing the issues he seeks to review lies as set forth in the Labor Law . . . which procedure, we note, he has already fully utilized . . . and, accordingly, he is completely foreclosed from attacking these determinations in the Court of Claims.' 36 A.D.2d 666, 318 N.Y.S.2d 238.
The first two causes of action for negligence and dereliction of duty, though perhaps inartistically drawn, seek the same relief as sought by the Claimant in Saffiotti, namely to review and hopefully overturn the referee's determination. The Court is unable to distinguish the present Claim from the one submitted to the Court in Saffiotti. Accordingly the Court grants the State's motion to dismiss as to the first two causes of action, to wit, negligence and dereliction of duty.
The remaining cause of action seeks damages for defamation of character. Section 9 of the Court of Claims Act confers jurisdiction upon the Court of Claims to hear and determine claims against the State by its officers or employees for torts committed while acting as officers or employees. Therefore, the Court has jurisdiction to hear and determine the Claimant's third cause of action.
The amended Claim states that the defamatory publication consisted of the issuance and insertion into public records of the statement 'willful misrepresentations to obtain benefits'. The original Claim set forth three additional phrases, which the Claimant also alleged to have been defamatory. These phrases are 'without good cause', 'knowing concealment' and 'the making of false statements'. The Court will for the purpose of this motion deem them to be included in the amended Claim.
While New York courts recognize the defense of absolute privilege for statements made in judicial and quasi-judicial proceedings, they do not recognize an absolute privilege for non-judicial proceedings. Andrews v. Gardiner, 224 N.Y. 440, 121 N.E. 341. Therefore, the threshold issue is whether or not an unemployment insurance benefit hearing before a referee constitutes a judicial proceeding. While a referee appointed by a court is unquestionably a quasi-judicial officer, it is not the designation given to the presiding officer that is...
To continue reading
Request your trial
-
Petyan v. Ellis
...have reached this same conclusion. White v. United Mills Co., 240 Mo.App. 443, 451, 208 S.W.2d 803 (1948); Kitchner v. State, 82 Misc.2d 858, 860, 371 N.Y.S.2d 91 (1975); annot., 'Defamation-Administrative Proceeding,' 45 A.L.R.2d 1296, 1303." Id., 37 Conn.Sup. 45, 429 A.2d We agree with th......
-
Allan and Allan Arts Ltd. v. Rosenblum
...nature, since the Referee's decision applied the law to the facts, and was subject to appellate review], Kitchner v. State of New York, 82 Misc.2d 858, 371 N.Y.S.2d 91 [unemployment insurance benefits hearing constituted quasi-judicial proceeding because the issue was determined by an adver......
-
Calhoun v. City of Providence, 77-111-A
...ex rel. Department of Justice v. District Court of the Eighth Judicial District, Mont., 560 P.2d 1328 (1976); Kitchner v. State, 82 Misc.2d 858, 371 N.Y.S.2d 91 (Ct.Cl.1975); Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 We, therefore, find in this case, as did the trial justice, that ......
-
Park Knoll Associates v. Schmidt
...application of appropriate provisions in the law to the facts and which are susceptible to judicial review (see Kitchner v. State of New York, 82 Misc.2d 858, 371 N.Y.S.2d 91; cf. Lipton v. Friedman, 2 Misc.2d 165, 152 N.Y.S.2d 261). It attaches to "every step" thereof until final dispositi......
-
Speak Freely And Breathe Easy: The Absolute Privilege In Judicial Proceedings
...is subject to appellate review. Massi v. LaPorte, 27 Pa. D. & C.3d 301 (1983), citing New York Court of Claims in Kitchner v. State, 371 N.Y.S. 2d 91 Notably, the privilege can extend to "pertinent and material" statements made in separate proceedings. See Post v. Mendel, 507 A.2d 351, ......