HIRSCHFELD v. THE STATE OF NEW YORK, #2003-015-374, Claim No. 107698, Motion
Nos. M-66885, CM-66934
Pro se claimant's claim seeking $2,948,519.02 in damages due to State Tax
Department's confiscation of bank account proceeds pursuant to warrant and levy
for back taxes dismissed as untimely where claim accrued between September and
November 2000 and claim not served and filed until May 5, 2003. Court also
denied claimant's motion for late claim relief citing the apparent lack of merit
of proposed claim which seeks equitable relief with monetary recovery being only
incidental to the primary relief.
1 1.The caption of this claim has been amended sua sponte to reflect the
only properly named defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the only properly named defendant.
FRANCIS T. COLLINS
Abraham Hirschfeld, Pro Se
Honorable Eliot Spitzer, Attorney General
Michael W. Friedman,
EsquireAssistant Attorney General
January 6, 2004
See also (multicaptioned
Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction
arising from the claimant's failure to serve the claim upon the Attorney General
within 90 days of its accrual is granted. Claimant's cross-motion for late
claim relief pursuant to Court of Claims Act § 10 (6) is denied. The claim
filed May 5, 2003 seeks $2,948,519.02 which claimant alleges was illegally
confiscated from certain enumerated bank accounts by the New York State
Department of Taxation and Finance (Tax Department) pursuant to a warrant and
levy for back taxes. The claim asserts that the seizure occurred without notice
and a proper audit following the filing of tax evasion indictments by the New
York District Attorney. Claimant seeks an order directing the return of the
confiscated monies along with interest and punitive damages. It is alleged in
the claim that the monetary seizures occurred between September 26, 2000 and
November 27, 2000.
The defendant has brought this pre-answer motion to dismiss the claim pursuant
to CPLR 3211  (sic
on the grounds
that the Court lacks subject matter jurisdiction since the claim was not served
upon the Attorney General or within 90 days of its accrual pursuant to Court of
Claims Act § 10 (9)
. Claimant, who
appears pro se, has not opposed the motion choosing instead to cross-move for
late claim relief pursuant to Court of Claims Act § 10 (6).
It is firmly established that a claimant's failure to serve a negligence claim
or a notice of intention to file a claim grounded in negligence upon the
attorney general within 90 days of accrual is a jurisdictional defect which
deprives the court of subject matter jurisdiction (see Court of Claims
Act § 10 (3); Welch v State of New York, 286 AD2d 496; Carter v
State of New York, 284 AD2d 810; Selkirk v State of New York, 249
AD2d 818; Scott v State of New York, 204 AD2d 424; Pelnick v State of
New York, 171 AD2d 734). In the instant matter, claimant has failed to
refute the defendant's allegations that the claim was served upon the Tax
Department rather than the Attorney General and that service occurred more than
90 days subsequent to the accrual dates set forth in the claim. As a result the
claim is dismissed for lack of jurisdiction.
As noted above, however, claimant cross-moved for late claim relief pursuant
to Court of Claims Act § 10 (6).
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: “whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and, whether the claimant has any other available remedy."
The first issue for determination upon a late claim is whether the application
is timely. Since movant alleges that the activities complained of occurred
between September 2000 and November 2000 this application would be timely as to
a negligence cause of action which is subject to the three year statute of
limitations set forth in CPLR § 214.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
Movant has alleged that he was unable to file a claim in a timely fashion due
to the State's delay in providing information regarding the amount allegedly
owed for back taxes. He further alleges that he was incarcerated from the time
the State confiscated his property until July 2002 and that he was preoccupied
with caring for his ill wife's personal interests including the appointment of
a guardian. Finally, he alleges that during the critical period he was required
to participate in court proceedings regarding his various business ventures.
While many of these excuses such as movant's incarceration and the direction of
his attention to business interests are not acceptable excuses for his failure
to timely serve and file a claim the Court has decided that the claimant has
offered a sufficient basis to have the court weigh this factor in favor of
granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. Movant alleges that because the confiscation of monies
from his various bank accounts occurred as a direct result of State action the
defendant was on notice of these events. He further alleges that his numerous
demands for an audit to explain his actual tax indebtedness provided numerous
opportunities for the State to investigate this matter and no prejudice to the
State can be demonstrated. Surprisingly, the State's opposition papers failed to
address any of the above factors and movant's allegations in this regard stand
unrefuted on the motion. The Court finds that these factors weigh in favor of
granting the motion.
With regard to the potential merit of the proposed
, it is settled that on a late claim
application a movant need only establish that the proposed claim is not patently
groundless, frivolous, or legally defective and there is reasonable cause to
believe that a valid cause of action exists (see
, Matter of Santana v
New York State Thruway Auth.
, 92 Misc 2d 1). Applying even this very
liberal standard to the proposed claim the Court is unable to ascertain any
cognizable cause of action over which this Court has subject matter
Although movant has characterized his claim as one for money damages, damages
are recoverable only upon a determination that the Tax Department erred in its
issuance of the warrants and levies against movant's bank accounts. Such a
claim in essence seeks both equitable relief and money damages. Determining
which of the two forms of relief is dominant is a critical determination in
light of this Court's limited jurisdiction. The Appellate Division, Third
Department in Ozanam Hall of Queens Nursing Home v State of New York, 241
AD2d 670 stated, at p. 671:
Fundamentally, although 'in determining claims for money damages against the
State, the Court of Claims may apply equitable considerations and perhaps, to
some extent, may grant some sort of incidental equitable relief' (Psaty v
Duryea, 306 NY 413, 417), that court's primary jurisdiction is limited to
actions seeking money damages against the State in appropriation, contract or
tort cases (see, Court of Claims Act § 9 ; Psaty v Duryea,
supra, at 416; Sidoti v State of New York, 115 AD2d 202, 203). As
such, the Court of Claims has 'no jurisdiction to grant strictly equitable
relief * * * with the return of the money to follow as a consequence of the
equitable relief, if granted' (Psaty v Duryea, supra at 416-417).
The question, then, is '[w]hether the essential nature of the claim is to
recover money, or whether the monetary relief is incidental to the primary
claim' (Matter of Gross v Perales, 72 NY2d 231, 236).
The wherefore clause in the (proposed) claim seeks the following relief:
a. awarding me the monies that were illegally confiscated by the New York
State tax [sic] Department.
b. awarding me interest on the monies that were illegally confiscated by the
New York State Tax Department.
c. awarding such further punitive damages as the court may deem fair and
In this case recovery of any money judgment is necessarily dependent upon a
determination that the Tax Department levies were illegal and therefore void.
Any monetary recovery by claimant would be incidental since the claim in essence
challenges the Tax Department's initial levies and the department's refusal to
return the monies seized and/or to conduct an audit of movant's tax liability as
he allegedly requested. Thus, the claim is in the nature of mandamus to compel
or certiorari to review the department's actions, relief which is available
only in a properly commenced article 78 proceeding in Supreme Court (Heron v
Division of Taxation of Dept. of Taxation & Fin. of State of New York,
209 AD2d 989, lv denied 85 NY2d 809; see, Harvard Fin. Servs. v
State of New York, 266 AD2d 685). To the extent that the claim seeks a
declaratory judgment, this Court is without jurisdiction to grant such relief
subject to very limited exceptions not applicable here (see, Court of
Claims Act § 9 (9-a); CPLR 3001; Wikarski v State of New York, 91
AD2d 1174; Fehlhaber Corp. v State of New York, 69 AD2d 362; see
also N.Y. Const. art VI § 6; Ouziel v State of New York, 174
Misc 2d 900). It has also been held that it is against public policy to award
punitive damages against the State (Sharapata v Town of Islip, 56 NY2d
332; Harvey v State of New York, 281 AD2d 846).
From the foregoing analysis it appears that the proposed claim presents no
cause of action over which this Court has subject matter jurisdiction and it
must therefore be deemed meritless for purposes of this application. This
important factor weighs against granting the motion.
As to the final statutory factor, while it appears that movant may have had an
alternative legal remedy (i.e., pursuant to either article 78 or article 30 of
the CPLR) time may have foreclosed those possible avenues of relief.
A careful review of the enumerated factors leads the Court to conclude that the
instant application for late claim relief should be and hereby is denied.
January 6, 2004
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated May 29, 2003;
Affirmation of Michael W. Friedman dated May 29, 2003 with exhibit;
Notice of cross-motion undated;
Affidavit of Abraham Hirschfeld sworn to June 10, 2003 with exhibits;
Affirmation of Michael W. Friedman dated June 13, 2003 with exhibit.
.See CPLR 3211 (a).
.Section 10 (9) of the Court of Claims Act is
not relevant to the instant claim since it deals with personal property claims
of inmates. Claimant, however, has not addressed this obvious citation mistake
and the Court has chosen to treat the error as harmless. References to section
10 (9) will be treated as references to section 10 (3) based upon the alleged
negligence of the Tax Department.
.Movant's application does not contain a
proposed claim as required by section 10 (6) of the Court of Claims Act. For
purposes of the motion the court, however, has considered the claim which was
dismissed herein as the proposed claim.