New York State Court of Claims

New York State Court of Claims

CUNNINGHAM v. THE STATE OF NEW YORK, #2005-015-050, Claim No. 111194, Motion No. M-70644


Claimant brought a pre-retirement claim seeking to have this court determine her retirement credit based on years of part-time employment. Court dismissed claim for lack of subject matter jurisdiction even though claimant alleged that the proposed calculation of her credits discriminated against women with children. Proper remedy lies with Comptroller whose decision may be reviewed in an article 78 proceeding.

Case Information

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

Footnote (defendant name) :
The caption of this claim is 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:
Suzanne Cunningham, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim alleges that the claimant was employed, presumably by the State of New York, "10 yrs. full time and 11 yrs. part time & 12 yrs. full time again". It is alleged that had claimant begun her state employment as a part time employee and then transitioned to a full time position the retirement system would credit her years of part time service as full time service for purposes of her retirement benefit computation. However, since she first began working on a full time basis and then subsequently worked part time her years of part time employment will be "pro-rated" at her retirement. The claim asserts that this method of calculating retirement credits discriminates against women raising children and in her case will result in a significant financial loss which she estimates to be $201,960. Although a July 22, 2005 accrual date is stated, the claim does not specifically allege that the claimant has, in fact, retired.

Defendant moves to dismiss on the grounds that the claim is premature since claimant has not yet been harmed and that the Court lacks subject matter jurisdiction to hear and consider a challenge to a determination of an administrative agency. Additionally, defense counsel alleges that claimant previously raised the same argument in a prior claim (Cunningham v State of New York, Ct Cl, April 28, 2004 [Claim No. 108759, Motion No. M-68081, UID # 2004-028-525], Sise, J., unreported[1]) which was dismissed for lack of jurisdiction.

Opposition to the State's motion consists solely of claimant's unsworn letter dated September 18, 2005 in which she essentially reiterates the allegations set forth in her claim.

"While '[j]urisdiction reposes in the Court of Claims where 'the essential nature of the claim [against defendant] is to recover money", [it does not lie] where "monetary relief is incidental to the primary claim" ' (Harvard Fin. Servs. v State of New York, 266 AD2d 685 quoting Matter of Gross v Perales, 72 NY2d 231, 236; see Madura v State of New York, 12 AD3d 759, 760-761, lv denied 4 NY3d 704; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]; see also Court of Claims Act § § 8, 9 [2])" (Guy v State of New York, 18 AD3d 936, 937).

Moreover, "Retirement and Social Security Law § § 74 and 374 vest [the] Comptroller with the exclusive authority to determine applications for retirement allowances and benefits (see, Retirement and Social Security Law § 74 [b]; § 374 [b]), including the calculation of service credits (see, e.g., Matter of Mancuso v Regan, 190 AD2d 948; Matter of Cassidy v Regan, 160 AD2d 1210; see also, Retirement and Social Security Law § § 41, 341). These statutes mandate that a retiree dissatisfied with any aspect of his or her retirement package seek relief from the Comptroller by requesting a hearing and redetermination and, upon final determination of the Comptroller, seek further relief in a CPLR article 78 proceeding, which is governed by a four-month statute of limitations" (Marsh v New York State and Local Employees' Retirement System, 291 AD2d 713, 714; see also Cole-Hatchard v McCall, 4 AD3d 715; Matter of Motta v McCall, 300 AD2d 803).

Here claimant seeks judicial review of a non-final computer assisted calculation of her future retirement benefits and an award of damages flowing from what she perceives as discriminatory action on the part of the Comptroller in crediting her years of part time service. Since claimant has not yet retired this claim is premature. More importantly, the specific relief requested is beyond the subject matter jurisdiction of the Court of Claims. For these reasons the claim is dismissed.

October 18, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 31, 2005;
  2. Affirmation of Belinda A. Wagner dated August 31, 2005 with exhibits;
  3. Letter dated September 18, 2005 from Suzanne Cunningham with attachments.

[1]Unreported decisions from the Court of Claims are available via the internet at