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
). 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 ).
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
“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 ).
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 ).
“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 ).
“[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
, lv denied 4 NY3d 704 ). 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 ).
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 ; 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
, lv denied 97 NY2d 607 ; Walker v New York State Division
of Parole, Ct Cl, November 2, 2006, UID #: 2006-016-070, Marin, J.,
Accordingly, it is ORDERED that Motion No. M-72602 is hereby denied.