1. Notice of Motion and Supporting Affirmation of Gail P. Pierce-Siponen, AAG,
with annexed Exhibits; and
2. Affidavit in Opposition of Roman Ilyayev, pro se.
Filed papers: Claim; Answer
Claimant alleges that on five separate occasions from August 2006 to December
2006 the New York State Insurance Department intentionally failed him when he
took the examination necessary to obtain a license as an insurance agent/ real
estate broker. He asserts that he knows the material extremely well, having
studied hard and taken a course at an accredited school, and consequently there
is no reason, other than wrongdoing on the part of the State, for him to fail.
As the place where the acts giving rise to the claim occurred, the Claim lists
“Thompson Prometric Center” in New York and Rego Park (Queens).
Defense counsel explains that Thompson Prometric is a private company that has
contracted with the Insurance Department to administer all licensing
examinations (Pierce-Siponen affirmation, ¶ 5, Exhibit C). The licensing
examinations are mandated by Insurance Law §§2103 and 2104, which
require that individuals who seek to be licensed as either an insurance agent or
broker must submit to and pass an appropriate written examination. These
statutes specifically contemplate that the Department may enter into contracts
to have a private corporation carry out examination services
(§§2103[f], 2104[e]), and that appears to have been done in this
Assuming, arguendo, that Claimant could prove that he had, in fact,
passed the licensing examination, any claim for money damages would be merely
incidental to the principal relief being sought: issuance of an insurance
agent/real estate broker’s license. An Article 78 proceeding is the
appropriate forum in which to bring such a challenge (see e.g. Matter of
Koster v Holz, 3 NY2d 639 ; Matter Gristina v Smith, 177 AD2d
388 [1st Dept 1991]; Matter of Lock v New York State Educ. Dept.,
102 AD2d 979 [3d Dept 1984]; Matter of Wright v New York State Educ.
Dept., 128 AD2d 989 [3d Dept 1987]; Matter of Gill v New York State
Racing & Wagering Bd., 8 Misc 3d 1027(A) [Sup Ct, NY Co. 2005];
Matter of Montanez v City of N. Y. Dept. of Bldgs., 8 Misc 3d 405
[Sup Ct, NY Co. 2005]; Matter of La Cloche v Daniels, 195 Misc 2d 329
[Sup Ct, NY Co. 2003]), and, consequently, the Court of Claims does not have
jurisdiction to hear this claim (Safety Group No. 194--New York State Sheet
Metal Roofing & A. C. Contrs. Assn., Inc. v State of New York, 298 AD2d
785 [3d Dept 2002]; see also Santiago v State of New York, UID
#2006-014-519, Claim No. 111532, Motion No. M-71224 [Ct Cl Aug. 2, 2006], Nadel,
J. [dismissing claim based on disqualification from a commercial driver’s
Defendant’s motion is GRANTED, and Claim No. 113209 is dismissed.