New York State Court of Claims

New York State Court of Claims

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.

Case Information

1 1.The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect 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:
Abraham Hirschfeld, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 6, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 [2] (sic)[2] 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)[3]. 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 claim[4], 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 jurisdiction.

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 [2]; 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 just.

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
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 29, 2003;
  2. Affirmation of Michael W. Friedman dated May 29, 2003 with exhibit;
  3. Notice of cross-motion undated;
  4. Affidavit of Abraham Hirschfeld sworn to June 10, 2003 with exhibits;
  5. Affirmation of Michael W. Friedman dated June 13, 2003 with exhibit.

[2].See CPLR 3211 (a)[2].
[3].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.
[4].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.