New York State Court of Claims

New York State Court of Claims

ILYAYEV v. THE STATE OF NEW YORK, #2007-028-570, Claim No. 113209, Motion No. M-73551


Synopsis


A claim based on allegations that a Claimant who failed the examination required for an insurance brokers license is dismissed on the ground that the Court lacks subject matter jurisdiction. A complaint to the testing services corporation that administered the tests or an Article 78 proceeding would be the appropriate avenues for any relief.

Case Information

UID:
2007-028-570
Claimant(s):
ROMAN ILYAYEV
1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
ILYAYEV
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113209
Motion number(s):
M-73551
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
ROMAN ILYAYEV, PRO SE
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Gail P. Pierce-Siponen, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 27, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant’s motion for an order of dismissal:

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][1], 2104[e][2]), and that appears to have been done in this case.

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 [1958]; 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 license test]).

Defendant’s motion is GRANTED, and Claim No. 113209 is dismissed.


August 27, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims