New York State Court of Claims

New York State Court of Claims

BURKE v. THE STATE OF NEW YORK, #2002-009-42, Claim No. 103597, Motion No. M-65390


Defendant's motion for summary judgment dismissing the claim was granted. The Court found that it did not have subject matter jurisdiction under the "Taxpayers' Bill of Rights", since it found such section inapplicable to tax foreclosure proceedings conducted by a County Treasurer.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

Defendant's Memorandum of Law .3

Opposition to Summary Judgment Motion, with Exhibits 4

Claimant's Memorandum of Law 5

In this claim, claimant seeks to recover damages based on allegations that a parcel of real property in Cayuga County, in which he had a legal interest, was taken and sold by the State before a mortgage foreclosure action could be brought by him.

A review of the claim, as well as the papers submitted in connection with this motion, reveals that in November, 1999, the Cayuga County Treasurer commenced an action under the Real Property Tax Law for the foreclosure of certain tax liens covering delinquent property taxes owed on property commonly known as 4871 Devlon Road in the Town of Locke, Cayuga County. At the time of this action, the record owner of the property in question was one Victor Thayer. The tax foreclosure proceeding was eventually completed, and the property was sold by the Cayuga County Treasurer to one David W. Tregaskis, by Quit Claim Deed dated October 12, 2000.

Claimant contends that at the time of this tax foreclosure proceeding, he held a secured mortgage interest in the property (see Exhibit B to Item 4) and that the Cayuga County Treasurer failed to give him proper notice prior to the sale of the property. Apparently, at the time of this tax foreclosure proceeding, both claimant and Mr. Thayer were incarcerated, although it appears that claimant had corresponded with the Cayuga County Treasurer in April, 1999, and that the Cayuga County Treasurer had forwarded a response to claimant at his then current address (see Exhibit to Items 1,2).

The Court of Claims is a court of limited jurisdiction, with its jurisdiction, powers and duties governed by Article 6, § 9 of the State Constitution and the Court of Claims Act (L 1939, ch 860, and as amended). Within this authority, the Court has been granted jurisdiction to hear claims against the State, its employees and officers for alleged tortious conduct (Court of Claims Act, § 9[2]).

This claim, however, is based not upon actions of a State employee, but rather upon the alleged failure of the Cayuga County Treasurer to provide claimant with notice that certain real property in which he had a legal interest was going to be sold at public auction for delinquent taxes. The taxes which were the subject of the tax foreclosure proceeding were taxes against real property, as assessed and determined by Cayuga County, and the actions against the property were performed by Cayuga County employees. There are no allegations anywhere in this claim that the State, its employees, or agents participated to any extent in this tax foreclosure proceeding.

Claimant contends, however, that this Court has jurisdiction over this claim pursuant to Tax Law, § 3036, which confers jurisdiction upon the Court of Claims to hear and determine claims asserted under the "Taxpayers' Bill of Rights". Section 3036 was enacted in 1997 as part of a comprehensive revision to the "Taxpayers' Bill of Rights" contained in Article 41 of the Tax Law. The section "essentially codifies existing common law rights" (New York State Memorandum in Support, 1997 McKinney's Session Laws of New York, p. 2547) to provide a cause of action for a person, not a taxpayer, to sue for damages for wrongful levy on property in which that person has a lien or interest. It is clear, however, that the provisions of the "Taxpayers' Bill of Rights" legislation applies only to taxes which are administered by the Commissioner of Taxation and Finance, and which are "imposed by or authorized to be imposed pursuant to this chapter [Tax Law, L 1909, ch 62], Article two-E of the general city law or section 27-0923 of the environmental conservation law." (Tax Law, § 3002[a]).

The authority of Cayuga County to assess and collect property taxes does not derive from the Tax Law, but instead is authorized by Article 9 of the Real Property Tax Law. Accordingly, § 3036 of the "Taxpayers' Bill of Rights" does not confer jurisdiction upon this Court to hear and determine this claim. Subject matter jurisdiction in this Court cannot be inferred, and if the State Legislature had intended that this Court should hear and determine claims of this nature, it must do so clearly and explicitly.

This Court therefore finds that it lacks subject matter jurisdiction to hear and determine this claim. Accordingly, the Court finds that it is not necessary to address the remaining contentions raised by defendant in its motion (i.e., whether the claim was timely filed, and/or whether the Cayuga County Treasurer provided claimant with the requisite notice in connection with its tax foreclosure proceeding).

Based on the above, therefore, it is

ORDERED, that Motion No. M-65390 is hereby GRANTED; and it is further

ORDERED, that Claim No. 103597 is hereby DISMISSED.

September 25, 2002
Syracuse, New York

Judge of the Court of Claims