Opinion
# 2018-041-067 Claim No. 130473 Motion No. M-92660
10-24-2018
SEAN B. MCTERRELL, 15-A-2874 v. THE STATE OF NEW YORK
SEAN B. MCTERRELL Pro Se HON. BARBARA D. UNDERWOOD New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Claimant's request for a "T.R.O." is denied.
Case information
| UID: | 2018-041-067 |
| Claimant(s): | SEAN B. MCTERRELL, 15-A-2874 |
| Claimant short name: | MCTERRELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to reflect the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130473 |
| Motion number(s): | M-92660 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SEAN B. MCTERRELL Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 24, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant requests a "T.R.O." in a submission to the Clerk of the Court of Claims entitled "Notice of Intention to File Claim," but referred to by the claimant as a "complaint."
The Clerk of the Court of Claims assigned motion number M-92660 to the claimant's submission and mailed a copy to the Attorney General.
Defendant asserts that it was never served with the claimant's submission by the claimant, and only learned of the submission by the letter from the Clerk of the Court of Claims as described above. Defendant opposes the claimant's request.
To the extent claimant's submission can be considered a motion, it was required to be served on the Attorney General (see Uniform Rules for the Court of Claims § 206.9; CPLR 2214; Sciarabba v State of New York, 152 AD2d 229 [3d Dept 1989]; L.F. O'Connell Assoc. v State of New York, 176 Misc 2d 697 [Ct Cl 1998]).
Claimant failed to serve his submission on the Attorney General. The claimant's request is denied on that basis alone.
Assuming claimant had properly served a motion on defendant, in proper form, the Court would still be constrained to deny the relief requested.
The Court of Claims is a court of limited jurisdiction and the powers conferred upon it do not include, under the facts and circumstances presented, the authority to provide the type of strictly equitable relief ("T.R.O.") requested by claimant (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]; Frasier v State of New York, 11 Misc 3d 497 [Ct Cl 2005]; Matter of Milner v New York State Higher Educ. Servs. Corp., 4 Misc 3d 221, 225 [Ct Cl 2004], affd 24 AD3d 977 [3d Dept 2005]; Tompkins v State of New York, 33 Misc 2d 828 [Ct Cl 1962]).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])."
In order for the Court to grant a "T.R.O." it would necessarily be required to review the administrative acts and/or omissions of the defendant, and as set forth above, it lacks jurisdiction to do so (see City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]).
The appropriate venue, if any, for claimant's requested relief is a CPLR article 78 proceeding.
Claimant's request for a "T.R.O." is denied.
October 24, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers considered:
1. Claimant's "complaint" and attachments, filed August 2, 2018; 2. Affidavit of Joan Matalavage, sworn to August 14, 2018, and attached exhibit.