New York State Court of Claims

New York State Court of Claims

VAN ALLEN v. THE STATE OF NEW YORK, #2005-032-015, Claim No. 106847, Motion No. M-69159


A claim challenging the constitutionality of a statue is dismissed on the ground that it falls outside the subject matter jurisdiction of the Court of Claims.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
H. William Van Allen, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 23, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This claim challenges the fact that claimant and other similarly situated voters who are not enrolled in a political party are not permitted to vote in primary elections. Election Law §8-302[4] provides that only enrolled members of a party may vote in that party's primary elections. Defendant has moved to dismiss the claim on the grounds that this Court does not have jurisdiction to hear it and, in addition, that the claim was not properly served on the Attorney General. Since the procedural issue could be dispositive, it will be considered first.

In the claim, claimant alleges that the cause of action accrued on April 29, 2002 at 4:24 p.m. at the Ulster County Board of Elections (claim, ¶¶ 3 and 4). He does not describe what event occurred at that time to trigger the accrual of a claim against the State, but there is no other date identified that could be an alternative date of accrual. The following day, on April 30, 2002, the Office of the Attorney General was personally served with a document captioned "Notice of Intent To File A Claim" (Arnold affirmation, Exhibit A). This document indicated that claimant was represented by the law firm of Galvin & Morgan. A month later, on May 3, 2002, a duplicate copy of this document was faxed to the Attorney General (id., Exhibit B).[1] In early June of that year, defense counsel spoke with claimant's attorney and was told that the document was intended to be a notice of intention to file a claim, not a claim (id., Exhibit C [confirming letter]). It was not until October 29, 2002 that claimant filed a claim with the Court of Claims. The document filed with the Clerk of the Court appears to be identical to the ones served on and faxed to the Attorney General, with the exception that the name of the law firm representing claimant has been removed and the statement "case is being transferred to new law firm" inserted in its stead.

The gravamen of the claim is that the provision of the Election Law cited above is unconstitutional, relying on a United States Supreme Court decision, Tashjian v Republican Party of Connecticut (479 US 208 [1986]), which held that a state statute preventing the political parties from opening their elections to unaffiliated voters was unconstitutional; see also, State Comm. of the Independence Party of New York v Berman, 294 F Supp 2d 518 [SDNY 2003][similar holding] ). Since such a claim would not be an action for appropriation, wrongful death, negligence/unintentional tort, or intentional tort, the applicable time limitation found in section 10 of the Court of Claims Act would be subsection (4), which governs contract claims and "any other claim not otherwise provided for by this section." That subsection requires that the claimant file and serve a claim or serve a notice of intention within six months after accrual of the claim and, if a notice of intention is employed, to file and serve the claim within two years after the accrual.

Dismissal is required, however, on defendant's alternative ground. The Court notes that, as a general proposition, the Court of Claims does not have jurisdiction over challenges to the constitutionality of statutes, even if such a determination is necessary to resolve a claim for money damages against the State (Matter of Markham v Comstock, 272 AD2d 971 [4th Dept 2000], appeal dismissed 95 NY2d 886, cert denied 531 US 1079; Shields v Katz, 143 AD2d 743 [2d Dept 1988]; Zimmerman v State of New York, 116 Misc 2d 521 [Ct Cl 1982]). Here, there is not even a necessarily related demand for money damages associated with the claim; the monetary amounts that claimant seeks are in the form of a penalty to be imposed "until all of approximately 2.2 million registered independent non-enrolled voters are individually contacted and informed that registered independent non-enrolled voters do in fact have the legal and constitutional right to be invited to vote in any primary election of a party" (claim, ¶5). Claimant is actually seeking equitable relief, consisting of a direction to State officials to perform some actions. Such relief may be obtained only by an article 78 proceeding commenced in Supreme Court (Safety Group No. 194 v State of New York, 2001 WL 939747 [Ct Cl 2001], aff'd 298 AD2d 785 [3d Dept 2002]).

Defendant's motion is granted, and Claim No. 106847 is dismissed.

February 23, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, Esq., AAG, with annexed Exhibits;

2. Affidavit in Opposition of H. William Van Allen, Pro Se;

Filed papers: Claim

[1] It should be noted that the Office of the Attorney General does not accept service by fax, nor does service by fax comply with the manner of service requirement contained in section 11(a) of the Court of Claims Act.