New York State Court of Claims

New York State Court of Claims

BABITCH v. THE STATE OF NEW YORK, #2005-032-016, Claim No. 109242, Motion Nos. M-68675, M-69076, M-69211


The exclusive procedure for challenging determinations regarding unemployment compensation benefits rest with the Department of Labor and judicial review is available in the Appellate Division, Third Department. The Court of Claims lacks subject matter jurisdiction to entertain such a claim.

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):
M-68675, M-69076, M-69211
Cross-motion number(s):

Claimant's attorney:
Stuart Babitch, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 23, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for unemployment compensation benefits that, claimant asserts, he should have received during the time period from January 6, 2004 to March 15, 2004. The events giving rise to the claim do not appear to be in dispute. Claimant, who resides in Suffolk County on Long Island, worked for a company that was initially located in adjoining Nassau County. The company then moved to a location in Manhattan near Madison Square Garden. Claimant continued working for the firm for another year, but to do so he had to commute either 3 hours each way by car or 2 hours each way if he took the train. In December 2003 he was informed by his employer that he would have to get another job if he could not make it to work by 9:00 a.m.

Claimant applied for unemployment benefits, but in a decision rendered on January 27, 2004, his application was denied by the Department of Labor on the ground that he did not have good cause for leaving his job (Babitch affidavit in opposition, Exhibit E). He appealed this ruling and was successful. On March 5, 2004, the original decision was reversed by the Unemployment Insurance Appeal Board on the ground that the excessive commute was a genuine hardship.

Three motions have been filed in connection with this claim. The claim was filed with the Court of Claims on April 23, 2004 and assigned to the Albany district. The earliest motion is claimant's motion for a reduction in the Court's filing fee and for a change of venue (Motion No. M-68675).[1] In response to that motion, defense counsel informed the Court and claimant that no corresponding claim had been served on the Office of the Attorney General. In light of that communication, Judge Richard E. Sise, sua sponte, issued an Order to Show Cause directing both parties to submit information regarding service or receipt/non-receipt of the claim (Motion No. M-69076). On August 30, 2004, claimant served a copy of the claim on the Attorney General. In lieu of answering, defendant moved to dismiss the claim on the grounds that it was untimely and improperly served and that the Court lacked subject matter jurisdiction over the claim (Motion No. M-69211). Claimant opposed this motion and, in the same submission, moved for permission to file an untimely claim.

The critical issue that overrides the other concerns is whether this claim lies within the subject matter jurisdiction of the Court of Claims. Claimant is seeking the amount of unemployment compensation benefits to which he claims he was entitled between the period of January 6, 2004, apparently the date on which he would have first qualified for such benefits, to March 15, 2004, ten days after the decision on appeal was issued. The original decision of the Department of Labor, the denial of unemployment benefits since the commute to and from Manhattan did not constitute an excessive hardship, was subsequently overturned on appeal.

The exclusive procedure for reviewing decisions regarding a worker's entitlement to unemployment compensation benefits is set forth in section 626 of the Labor Law:
The procedure herein provided for hearings before referees with respect to any determination, rule, or order of the commissioner, and for decisions thereon and for appeals therefrom, first to the appeal board and thereafter to the courts, shall be the sole and exclusive procedure notwithstanding any other provision of law.
Judicial review of decisions of the appeal board is obtained by appealing questions of law and, at the board's discretion, certifying other questions to the Appellate Division, Third Department (Labor Law §624). It is well established that administrative determinations made pursuant to these provisions of the Labor Law are not subject to collateral attack in the Court of Claims (Saffioti v State of New York, 36 AD2d 666 [3d Dept 1971]; Kitchner v State of New York, 82 Misc 2d 858, 859 [Ct Cl 1975]; see also Lublin v State of New York, 135 Misc 2d 419, 420, [Ct Cl 1987], affd 135 AD2d 1155, lv denied 71 NY2d 802).

Because this Court does not and could not have subject matter jurisdiction over the cause of action asserted by claimant, the rulings on the several motions needs no further discussion. Claimant's motion for a change of venue (Motion No. M-68675) is denied as moot; Motion No. M-69076 is withdrawn as unnecessary in light of defense counsel's admission that a claim was served on the Attorney General; defendant's Motion No. M-69211 is granted; and Claim No. 109242 is dismissed.[2]

February 23, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for a change of venue (Motion No. M-68675); on the Court's motion, brought by order to show cause, for information relating to service of the claim (Motion No. M-69076), and on defendant's motion for an order of dismissal (Motion No. M-69211).

Motion No. M-68675
1. Notice of Motion and Supporting "Affirmation" of Stuart Babitch, pro se, with annexed Exhibits;

2. Letter reply of Glenn C. King, Esq., AAG;

Motion No. M-69076

3. Order to Show Cause, issued by the Hon. Richard E. Sise;

4. Letter reply of Glenn C. King, Esq., AAG;

5. Affidavit of Stuart Babitch, Pro se;

Motion No. M-69211

6. Notice of Motion and Supporting Affidavit of Michael C. Rizzo, Esq., AAG, with annexed Exhibits;

7. Affidavit in Opposition of Stuart Babitch, pro se, with annexed Exhibits;

8. Reply Affidavit of Michael C. Rizzo, Esq., AAG, with annexed Exhibit;

Filed papers: Claim

[1] That portion of the motion seeking a reduction in the filing fee was decided by Presiding Judge Richard E. Sise in an order issued May 12, 2004.
[2] In his submission in opposition to defendant's motion to dismiss, claimant also asked for permission to file an untimely claim pursuant to Court of Claims Act §10(6). Because the claim lies outside this Court's subject matter jurisdiction, such relief would also be denied.