New York State Court of Claims

New York State Court of Claims

GLOVER v. THE STATE OF NEW YORK, #2001-028-570, Claim No. 104646, Motion No. M-64014


Defendant moved, pre-answer, to dismiss the claim based upon a lack of jurisdiction over claims made under the Abandoned Property Law. Claimant's remedy is an Article 78 proceeding. Claim dismissed

Case Information

SEAN GLOVER The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Defendant's CPLR 3211 motion for dismissal of the instant claim.

  1. Notice of Motion, filed on August 31, 2001.
  1. Supporting Affirmation of Assistant Attorney General Kathleen M. Resnick, with annexed Exhibit A (Resnick Affirmation)
  1. Supporting Affirmation of Robert Harder, Esq. (Harder Affirmation).

Opposition Papers: None.

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 [2]; 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.

October 31, 2001
Albany, New York

Judge of the Court of Claims