Fuller v. State

*366Order, State of New York, Court of Claims (Alan C. Marin, J.), entered September 16, 2003, which granted defendant’s motion to dismiss the claim, unanimously affirmed, without costs.

Claimant failed to establish the grounds for a constitutional tort (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; cf. Brown v State of New York, 89 NY2d 172 [1996]). Furthermore, the State is not subject to liability in the Court of Claims for the consequences of official acts of a district attorney, under a theory of respondeat superior, because he is not an officer or employee of the State (Fisher v State of New York, 10 NY2d 60 [1961]; see Court of Claims Act § 9 [2]). Concur—Tom, J.P., Sullivan, Williams, Lerner and Sweeny, JJ.