• abOpposition - NONE.
Filed Papers: Claim filed December 10, 2001; Amended Claim filed January 24,
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
. 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.