New York State Court of Claims

New York State Court of Claims

BERRIAN v. STATE OF NEW YORK, #2006-015-114, Claim No. 112111, Motion Nos. M-71715, CM-71765


Claim arising out of the failure of the county clerk to return a filing fee was equitable in nature and resulted in dismissal.

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:
Lenard Berrian, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. ActonAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 22, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim is dismissed sua sponte for lack of subject matter jurisdiction. Claimant's motion for an order striking the affirmative defenses set forth in the defendant's answer and defendant's cross-motion for summary judgment dismissing the claim as untimely served and filed are denied as academic. The verified claim alleges that in May, 2005 the claimant submitted a request for judicial intervention, order to show cause (O/S/C), petition and supporting documents in an attempt to commence an article 78 proceeding challenging a determination in a prison disciplinary matter. The O/S/C was assigned to the Hon. Daniel K. Lalo, Acting JSC, who by order dated May 25, 2005 granted claimant poor person status and reduced the Supreme Court filing fee to $50.00. The order advised claimant that he could not proceed with the case until all fees were collected. In response to a request from the claimant on June 22, 2005 Acting Justice Lalor signed an amended order allowing claimant to make an initial payment of $15.00 in partial satisfaction of the reduced filing fee with the balance "to be collected by the appropriate official of the facility in which the inmate is lodged in the same manner as the reduced filing fee would be if assessed in total"[1].

Claimant alleges that Acting Justice Lalor never issued the Order to Show Cause and that he requested a refund of the filing fee by letter to the Court dated October 19, 2005 on the ground that the article 78 proceeding had become moot. Acting Justice Lalor denied claimant's ex parte application for a refund of the filing fee in a decision and order dated November 4, 2005.

Claimant subsequently sought a refund of the filing fee from the New York State Office of Court Administration (OCA). By letter dated December 13, 2005 claimant was advised that OCA had no authority over court fee refunds which are administered by the County Clerk in the County of filing. Claimant's letter was forwarded to the Greene County Clerk who upon the advice of the Greene County Attorney notified claimant by letter dated February 9, 2006 that he was "not entitled to a refund of the monies paid in connection with the action commenced in Greene County Supreme Court".[2]

Although the claim's WHEREFORE clause seeks a "judgment against the Defendant for negligently depriving Claimant of his funds (property)" the claim itself does not allege any negligent conduct. Rather, claimant first sought return of the monies at issue by way of an ex parte application which was denied by Acting Supreme Court Justice Lalor. A subsequent attempt to secure the return of the monies from the Greene County Clerk was denied after consultation with the County Attorney. In neither instance was the failure to return the monies negligent but the result of deliberate decision making. As such the Court determines that the actual relief sought in the claim is an order compelling the return of the monies in the nature of mandamus.

"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' (Patsy v Duryea, supra at 416-417)" (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671). 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). This Court has been found to be without jurisdiction to mandamus a state officer, such as the County Clerk in the instant matter (see National Westminister Bank, USA v State of New York, 76 NY2d 507), to take action similar to that which claimant herein requests (see Matter of Silverman v Comptroller of State of N. Y., 40 AD2d 225).

Claimant could have appealed the denial of his ex parte application for return of the monies but apparently chose not to, a circumstance which in itself would require denial of the requested relief (Matter of Veloz v Rothwax, 65 NY2d 902; Matter of Ferguson v Cheeseman, 138 AD2d 852). Claimant instead chose to institute the instant action to secure the same relief previously requested of Supreme Court and the Greene County Clerk, i.e., return of the filing fee paid. Because relief may be provided the claimant only through the exercise of equitable powers (i) to review the decision of the Greene County Clerk that the claimant is "not entitled to a refund of the monies paid in connection with the action" and (ii) compelling the Clerk to return the monies, the Court finds that it lacks jurisdiction of the claim and therefore, the claim is dismissed sua sponte (see Matter of Fry v Village of Tarrytown, 89 NY2d 714). Dismissal renders academic both claimant's motion and the defendant's cross-motion which are, accordingly denied.

August 22, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 9, 2006;
  2. Affidavit of Lenard Berrian sworn to May 9, 2006;
  3. Notice of cross-motion dated May 23, 2006;
  4. Affidavit of Dennis M. Acton sworn to May 23, 2006;
  5. Reply to defendant's cross-motion dated May 30, 2006.

[1].As noted in Exhibit C attached to the filed claim.
[2].See Exhibit F attached to the filed claim.