Filed papers: Claim, filed July 27, 2001.
Defendant has timely moved, by pre-answer motion, to dismiss the claim pursuant
to CPLR 3211. Defendant asserts that the Court lacks both subject matter and
personal jurisdiction over the claim and that the claim fails to state a cause
of action upon which relief can be granted (Resnick Affirmation ¶
2). Claimant has failed to answer or oppose the motion.
Claimant seeks to recover two distinct assets in this claim. The first asset
is a number of shares of stock in SBC Communications. The shares, which had
been titled to an Evan Glover, were transferred to the Office of the State
Comptroller (Comptroller), in 1997, apparently as abandoned property. Claimant
alleges that in May 1999 he made claim for this asset pursuant to the procedure
set forth in the Abandoned Property Law and that the Comptroller has failed to
determine his claim. The second asset is a savings account, formerly held in
the name of Sean Glover, maintained at The Bank of New York, which account
Claimant alleges was terminated for forgery in 1999 (Claim ¶ 9).
The Defendant does not dispute that Claimant has a claim pending with the
Comptroller for the SBC Communications stock. The reason proffered for the
delay in determining the claim is immaterial to a resolution of the instant
motion. The issue before the Court is whether it has jurisdiction to make a
plenary determination of the parties' rights or to compel the Comptroller to
render a decision.
The Abandoned Property Law vests the Comptroller with
full and complete authority to determine all such claims and shall forthwith
send written notice of such determination to the claimant. At any time within
four months thereafter, such claimant may apply for a hearing and a
redetermination of his claim. After an appropriate hearing on notice, before the
comptroller or person duly designated by him, the comptroller shall make and
serve his final determination, which alone shall be reviewable by application to
the supreme court, Albany county, within four months following the notice of
such final determination
Abandoned Property Law
, §1406(1)(b). The quoted language is not unlike that found in Retirement
and Social Security Law, which provides the mechanism for a determination, by
the Comptroller, of a public employee's entitlement to certain retirement or
pension benefits. Under §§74 and 374, the Comptroller has the
exclusive authority to determine applications for retirement benefits
(see, Retirement and Social Security Law § 74 and § 374
[b]); Matter of Poormon v Regan, 134 AD2d 659) and review is by resort to
an Article 78 proceeding in Supreme Court. In Young v State of New
York, Judge Collins determined that a claimant's exclusive remedy to
challenge the computation of an early retirement incentive was an article 78
proceeding, a form of relief beyond the jurisdiction of the Court of Claims
(Young v State of New York, 179 Misc 2d 879, 883). A similar conclusion
was reached when a challenge was filed by a member of the Teachers' Retirement
System under Education Law §509, with the Court of Claims holding that it
lacked subject matter jurisdiction (Heslop v. New York State Teachers'
Retirement System, 195 AD2d 851, 852).
Turning to the at-issue statute, the Court finds the language of §1406 to
be clear and unambiguous and further, that it provides the exclusive remedy, an
action in Supreme Court. Furthermore, to the extent Claimant, as his primary
relief, seeks this court to compel the Comptroller to take action with the
return of the money to follow as a consequence of the equitable relief, such
relief is likewise beyond the jurisdiction of this Court (Court of Claims Act
§ 9 ; see, Psaty v Duryea, 306 NY 413, 416; Sidoti v State of
New York, 115 AD2d 202, 203).
Claimant's attempt to recover The Bank of New York savings account in this
Court is misplaced. If, as defendant believes, the savings account has been
retained by The Bank of New York (Resnick Affirmation, ¶ 3) this
Court clearly lacks jurisdiction over The Bank of New York and the claim is
properly dismissed on that basis (see, Court of Claims Act § 9). On
the other hand, if Claimant's averments can be read to state the account has
been transferred to the Comptroller pursuant to Abandoned Property Law §303
(Claim, ¶ 12) then the Court lacks jurisdiction for the reasons set forth
above when discussing the shares of stock.
Based upon the papers before it, the Court would be remiss if it did not urge
Claimant to cooperate with the Comptroller's office so that the comptroller can
discharge his salutary functions under the Abandoned Property Law and determine
the underlying claim. Failing that, claimant's resort, pursuant to statute, is
in the Supreme Court.
Accordingly, and for the foregoing reasons, the defendant's motion is granted
and Claim No. 104646 is dismissed in its entirety.