New York State Court of Claims

New York State Court of Claims

GAMMA v. STATE OF NEW YORK, #2006-039-007, , Motion No. M-72602


Case Information

Claimant short name:
Footnote (claimant name) :

STATE OF NEW YORK1 1.Caption has been amended sua sponte to reflect the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

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

Claimant’s attorney:
Paul N. Weber, Jr., Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Dewey LeeAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Stephen J. Gamma (hereinafter “movant”) seeks permission to serve and file a late claim wherein he alleges that in May 1985 he entered into a contractual relationship with defendant when he was hired as a police officer by the City of Newburgh Police Department. Movant further alleges that defendant breached the terms of his retirement contract when it denied his request for disability retirement benefits. He attributes the delay in filing his claim to a number of factors including, among others, “other litigation” and unfamiliarity with the law regarding the serving and filing of a late claim. Defendant opposes the motion on the ground that the Court has no subject matter jurisdiction over the claim. More specifically, defendant argues that the proper remedy lies in a CPLR article 78 proceeding.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). The Court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’ ” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]).

Court of Claims Act § 10 (6) sets forth the criteria to consider when permission is sought to file a late claim. Specifically, the court shall examine,

“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

The factors delineated in Court of Claims Act § 10 (6) are “not exhaustive and the presence or absence of any one factor is not controlling” (Edens v State of New York, 259 AD2d 729, 730 [1999]). “However, it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request” (Prusack v State of New York, 117 AD2d 729, 730 [1986]).

“[I]n determining the subject matter jurisdiction of the Court of Claims, the threshold question is ‘[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim’ ” (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005]). Moreover, pursuant to Retirement and Social Security Law § 74 and § 374, the Comptroller is vested “ ‘with exclusive authority to determine applications for retirement allowances and benefits,’ ” and the mandatory vehicle for challenging the Comptroller’s final decision is a CPLR article 78 proceeding (Cunningham v State of New York, Ct Cl, October 18, 2005, UID #: 2005-015-050, Collins, J., M-70644, quoting Marsh v New York State & Local Employees’ Retirement Sys., 291 AD2d 713, 714 [2002]).

Here, movant alleges, in relevant part, that “[o]n November 29, 2000 . . . the New York State and Local Retirement Systems denied . . . his disability retirement benefits, thus breaching their contractual obligations . . . [and he] is seeking full performance of the contractual obligations undertaken and subsequently breached by the New York State and Local Retirement Systems”(Prop. Claim, Paras. 8 & 10). The Court finds that the gravamen of the claim is the propriety of the Comptroller’s decision denying movant’s request for disability retirement benefits and, incidental thereto, is his request for money damages. Movant’s attempt to characterize this claim as one for breach of contract is unavailing. Accordingly, the Court lacks subject matter jurisdiction to review movant’s challenge to the Comptroller’s denial of his disability retirement benefits (see Madura v State of New York, supra; Matter of Cole-Hatchard v McCall, 4 AD3d 715 [2004]; Cunningham v State of New York, supra). As “it would be futile to permit the filing of [this] legally deficient claim,” the Court is compelled to deny movant’s motion for permission to file a late claim (Prusack v State of New York, supra).

Even if the Court had subject matter jurisdiction to consider the instant claim, the motion for permission to file a late claim would nonetheless be denied. CPLR 217 (1) provides that a lawsuit challenging a final and binding administrative determination must be commenced within four months after the determination. Movant seeks permission to file a late claim almost six years after the Comptroller’s final determination. Thus, movant failed to seek permission to file a late claim prior to expiration of the applicable statute of limitations, in accordance with Court of Claims Act § 10 (6). Movant’s attempt to characterize the claim as one for breach of contract “does not cure this fatal inaction on [his] part” (Marsh v New York State & Local Employees’ Retirement Sys., supra at 714; see also Wechsler v State of New York, 284 AD2d 707, 708 [2001], lv denied 97 NY2d 607 [2001]; Walker v New York State Division of Parole, Ct Cl, November 2, 2006, UID #: 2006-016-070, Marin, J., M-71748).

Accordingly, it is ORDERED that Motion No. M-72602 is hereby denied.

January 30, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated November 25, 2006;
  2. Affidavit of Claimant in Support of Motion, sworn to on November 25, 2006, with annexed Exhibits; and
  3. Affirmation in Opposition of Dewey Lee, Assistant Attorney General, dated December 28, 2006.