New York State Court of Claims

New York State Court of Claims

BENNETT IRREVOCABLE TRUST v. THE STATE OF NEW YORK, #2003-028-591, Claim No. 107550, Motion Nos. M-66769, CM-66872


Synopsis


Case Information

UID:
2003-028-591
Claimant(s):
THE BENNETT IRREVOCABLE TRUST, CARL F. GUY, as trustee for THE BENNETT IRREVOCABLE TRUST UTA 10/4/96 AS AMENDED 4/15/97
Claimant short name:
BENNETT IRREVOCABLE TRUST
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107550
Motion number(s):
M-66769
Cross-motion number(s):
CM-66872
Judge:
RICHARD E. SISE
Claimant's attorney:
GUY LAW OFFICEBY: Carl F. Guy, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. Friedman, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 18, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on Defendant's motion to dismiss the Claim for lack of subject matter jurisdiction and Claimant's cross-motion for a change of venue:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General
Michael W. Friedman (Friedman Affirmation) filed May 5, 2003 with annexed Exhibits A-C

2) Notice of Cross-Motion and Affirmation in Support of the cross-motion and in Opposition to Motion of Carl F. Guy, Esq. (Guy Affirmation) filed May 27, 2003,with Annexed Exhibit A;

3) Claimant's Memorandum of Law

4) Reply Affirmation of Assistant Attorney General Michael W. Friedman (Friedman Affirmation) filed June 3, 2003;


5) Letter from Carl F. Guy, Esq. (Guy Letter) as a sur-reply received July 3, 2003;


Filed Papers: Verified Claim, filed April 1, 2003.

The instant Claim seeks damages flowing from the transfer of funds from an escrow account to the Department of Taxation and Finance to satisfy a tax warrant filed on June 24, 1997 in Onondaga County. Claimant, as trustee of the Bennett Irrevocable Trust (the Trust), asserts the monies are properly the property of the Trust, having been transferred into the Trust prior to the filing of the tax warrant (Claim ¶ 4). Claimant further asserts that the taxes were wrongfully levied against the Trust (Claim ¶ 6). The Defendant has timely moved by pre-answer motion to dismiss the Claim for lack of subject matter jurisdiction. Claimant opposes the application and has cross moved for a change of venue.

Defendant's motion is premised primarily on the decision in Bennett Irrevocable Trust v State of New York, Ct Cl, Collins, J., Claim No. 106293, UID #2003-015-314, February 24, 2003 [unpublished opn], wherein Judge Collins held that the Court of Claims lacked subject matter jurisdiction over a claim seeking equitable relief and a refund flowing from the same facts as the instant claim. Defendant maintains the instant Claim, in which the prayer for equitable relief is omitted, is identical in all other respects to the dismissed Claim and should be barred by the doctrine of res judicata. Claimant asserts that res judicata is inapplicable as there has not been a determination "on the merits."

A review of the dismissed Claim (Friedman Affirmation, Exhibit B) and the instant Claim (id. Exhibit A) discloses that the facts of the Claims are indeed identical while the ad damnum clauses are different. Which legal label to apply to Judge Collins' decision, whether collateral estoppel - issue preclusion or res judicata - claim preclusion, is irrelevant to the resolution of the instant motion as a motion to dismiss is conclusive of the issue it resolves (175 East 74th Corp. v Hartford Acc. & Indemnity Co., 51 NY2d 585). To be sure, the issue resolved in the prior proceeding was whether the Court of Claims had subject matter jurisdiction to entertain this Claim. The answer was an unequivocal no[1] and this Court concurs.

Assuming arguendo that Claimant's recasting the Claim as one purely for money damages (see Guy Letter) raises an issue not resolved in the prior decision, this Court still lacks subject matter jurisdiction. In reaching this conclusion, the Court has examined "what it would have to do" to award damages (see Safety Group No. 194 v State of New York, Ct Cl, Sise, J.,

2001 WL 939747, 2001 N.Y. Slip Op. 40099(U), [unpublished opn], affd 298 AD2d 785) and finds that it would necessarily have to revisit the determination of the Department of Taxation and Finance. As such, the Court holds that the money damage claim is "incidental" to the equitable relief that Claimant could have sought in an Article 78 proceeding and, in addition, that because of the nature of the official action that would have to be reviewed and ruled upon to decide their entitlement to money, an Article 78 proceeding was the exclusive remedy available to them (see Ouziel v State of New York, 174 Misc 2d 900; see also Bennett Irrevocable Trust v State of New York, supra).

For the foregoing reasons, Defendant's motion to dismiss is granted as the Court lacks subject matter jurisdiction over the instant Claim. Claimant's cross-motion for a change of venue is denied as moot.











December 18, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] The Court notes that the issue of subject matter jurisdiction can not be waived (Lublin v State of New York, 135 Misc 2d 419, 421).