New York State Court of Claims

New York State Court of Claims

SULLIVAN v. THE STATE OF NEW YORK, #2002-028-027, Claim No. 105325, Motion Nos. M-64567, M-64787


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):
M-64567, M-64787
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Grace A. Brannigan, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motions to dismiss the Claim and Amended Claim:
Motion No. M-64567

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Grace A. Brannigan, filed January 14, 2002, (Brannigan Affirmation), with annexed Exhibits A-B.
2) Opposition - NONE.

Motion No. M-64787

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Grace A. Brannigan, filed February 27, 2002, (Brannigan II), with annexed

Exhibits A-B.

• abOpposition - NONE.

Filed Papers: Claim filed December 10, 2001; Amended Claim filed January 24, 2002.

The Claimant, Teresa Sullivan, seeks damages for the alleged negligent termination of her unemployment insurance benefits without cause (Amended Claim, ¶ 2). Defendant has moved by pre-answer motion for dismissal asserting the Court of Claims lacks subject matter jurisdiction in that the Court is not vested with the authority to review administrative agency determinations.

The procedural posture of this claim warrants discussion before the Court reaches the merits of the motion. Following service of the original claim, defendant timely moved by pre-answer motion (M-64567) to dismiss the Claim for lack of subject matter jurisdiction. Prior to the return date of that motion, Claimant filed an amended claim. Defendant then moved by separate motion (M-64787) to dismiss the amended claim for the same reason, lack of subject matter jurisdiction. The Court has reviewed the claim and amended claim and finds that the amended claim adds nothing of substance by way of either the theory of the case or the facts to the original claim. Rather, the amendment is to assert an earlier accrual date for the claim,

which, does not render the Claim untimely filed.

CPLR 3025(a) allows a party to amend a pleading as of right within 20 days after a responsive pleading is served (see, CPLR 3025[a]). The defendant's motion to dismiss the claim pursuant to CPLR 3211(a)(2) extended the defendants' time to answer (see, CPLR 3211[f]) and thus extended the time in which the Claimant could amend her Claim as of right (see, CPLR 3025[a]; STS Management Development Inc. v New York State Dept. of Taxation and Finance, 254 AD2d 409, 410; Perez v Wegman Companies, Inc., 162 AD2d 959, 959; Sholom & Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799).

The question of whether the amended pleading abates the first motion has stirred some debate in the Courts (compare, Sage Realty Corp. v Proskauer Rose LLP, 251 AD2d 35, 38 [we prefer the rule set forth in Sholom that the moving party has the option to decide whether its motion should be applied to the new pleadings]; and Lipary v Posner, 96 Misc 2d 578 [motions addressed to original complaint became moot as the amended complaint became the only complaint in the case]) with Professor Siegel weighing in on the side that it should not automatically abate (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:65
D'Addario v McNab,
73 Misc 2d 59
the court determined the amended pleading made "no change worthy of mention" (Id. at 62) and directed, without objection, that the cross-motion to dismiss the original pleading would be directed to the amended pleading.

Against this background, the Defendant in the instant Claim has taken the most direct route possible by serving a new motion to dismiss the amended claim, effectively removing any doubt as to its intentions to continue to seek dismissal of the case and thereby eliminating the need for the Court to intervene to determine the movant's intentions[1]. Therefore, the motion to dismiss the now superceded Claim is denied as moot.

The Court now turns to the merits of the motion to dismiss the amended Claim. As an initial matter, Claimant's assertion that "cessation w/o cause did/does not exist and is not covered under Sec. 593 or any other secs. of the Labor Laws" (Amended Claim, ¶2), is inaccurate as Labor Law §597 permits the local office to make a review of its initial determinations (see generally, Matter of Bernstein, 253 AD2d 966; Matter of Dunford, 111 AD2d 1067). An unemployment insurance benefits claimant "who is dissatisfied with an initial determination of his or her claim for benefits ... may request a hearing." (Labor Law § 620). Following this hearing an aggrieved party (as well as the Commissioner) may take an appeal to the appeals board which may "affirm or reverse, wholly or in part, or may modify the decision appealed from" (Labor Law §621) and from there, assuming continued dissatisfaction, to the appellate division of the supreme court, third department and ultimately to the Court of Appeals (Labor Law § 624). This statutory process of review is "the sole and exclusive procedure notwithstanding any other provision of law" (Labor Law § 626; see also, Vartanian v Research Foundation of State University of New York, 227 AD2d 744, appeal dismissed 88 NY2d 1053, lv. to appeal dismissed in part, denied in part 89 NY2d 965).

"Based upon appellate authority, the Court of Claims has consistently held that where statutes provide a method for review of adjudications by administrative agencies, they must be followed. A collateral review may not be sought under the guise of a claim for money damages." (see, Lublin v State of New York, 135 Misc 2d 419, 420 [collecting cases] affd 135 AD2d 1155, lv denied 71 NY2d 802; see also, Vaughn v State of New York, Ct Cl, Claim No.99030, Motion No. M-58387 [Read, P. J.], December 23, 1998). Here, it is plain that Claimant seeks to challenge a determination which affected her entitlement to statutory unemployment insurance benefits. Regardless of how Claimant puts words to her dissatisfaction, resolution of the issue of whether the discontinuance of her benefits was appropriate - is a decision that the Legislature has vested exclusively in the aforementioned review process. Accordingly, the Court of Claims lacks subject matter jurisdiction over this Claim (Kitchner v State of New York, 82 Misc 2d 858).

For the foregoing reasons, the Defendant's motion is granted and Claim No. 105325 shall be and hereby is dismissed in its entirety.

May 3, 2002
Albany, New York
Judge of the Court of Claims

[1] The single motion rule (CPLR § 3211[e]) is no bar to a second dismissal motion where the claim has been amended (see, Shelley v Shelley, 180 Misc 2d 275, 283; Taylor v Eli Haddad Corp., 118 Misc 2d 253, 255; Kaplan v K. Ginsburg, Inc.,14 Misc 2d 356, 358).