New York State Court of Claims

New York State Court of Claims

EL v. NEW YORK STATE COMPTROLLERS OFFICE, #2007-038-568, Claim No. 113140, Motion Nos. M-73715, CM-73834


Defendant’s motion to dismiss granted for failure to state a cause of action. Claim sought damages flowing from Comptroller’s garnishment of claimant’s wages in accordance with federal Notice of Tax Levy. Claimant’s contention that he was not liable for taxes should be addressed to taxing authority, not employer who merely garnished wages

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:
KWAME O. EL, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 31, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages allegedly sustained as a result of tax levies imposed by the federal taxing authority, the Internal Revenue Service (“IRS”). Claimant, an employee of the New York State Office of Mental Health, seeks compensation from defendant because of the actions of the State Comptroller’s Office relating to the garnishment of claimant’s wages to comply with the IRS levy. Claimant has submitted a motion seeking an order directing the termination of garnishment, the refund of all funds garnished pursuant to Notices of Levy, and an assessment of punitive damages. Defendant cross-moves to dismiss the claim for failure to state a cause of action against defendant (see CPLR 3211 [a] [7]). Claimant has not submitted any opposition to defendant’s cross motion. This claim arises from a “Notice of Levy on Wages, Salary and Other Income” dated August 14, 2006, that was addressed from the IRS to the New York State Office of the Comptroller. The notice states that claimant owes a total amount in excess of $34,000.00 for liabilities that arose in 2000, 2001 and 2002, along with penalties and other assessments (see Krenrich Affirmation, dated August 10, 2007, Exhibit E). The basis of the instant claim is set forth in claimant’s affidavit in support of his motion: “I have made my own determination that I am not subject to Federal Municipal laws (ie; Internal Revenue code and social Security [sic])” (El Affidavit, verified July 5, 2007, ¶ 9).

Turning first to defendant’s cross motion to dismiss the claim for failure to state a cause of action, defendant argues, in pertinent part, that “[s]ince it is the federal government imposing the levy on Claimant’s wages for the collection of federal income taxes, the Claimant does not have a cause of action against the State of New York” (Krenrich Affirmation, at ¶ 14). Indeed, despite the statement in claimant’s Notice of Motion that the Comptroller’s Office has “unlawfully turn[ed] over Claimants [sic] income to Internal Revenue Service without proper justification or authority,” neither the claim nor the papers submitted in support of claimant’s motion elaborate upon the alleged misfeasance of the Comptroller’s Office. There is no specific allegation of wrongdoing, nor any particularization of how the Comptroller’s Office may have exceeded the bounds of its authority by garnishing claimant’s wages in accordance with the Notice of Levy. The papers submitted by claimant in support of his motion are either relevant to the actions and scope of authority of the IRS and its agents, or indicate only that the New York State Comptroller was simply complying with federal directives with respect to withholding from, and garnishment of, claimant’s wages. In sum, despite a thorough and favorable review of the claim and claimant’s affidavit (see Leon v Martinez,, 84 NY2d 83, 87-88 [1994]), the claim presents no discernable cause of action. An employer who garnishes and surrenders an employee’s wages in response to a Notice of Levy is merely acting in compliance with the requirements of federal law (see Smethers v Joliet, 2005 WL 1983371, at *4 [N.D.Ohio, 2005]). The claim of a taxpayer who takes issue with a levy imposed by a taxing authority is properly addressed against that taxing authority (see e.g. Peacock v Commissioner of Internal Revenue, T.C. Memo. 2003-206, 2003 WL 21658253 [U.S. Tax Court 2003]; Bennett Irrevocable Trust v State of New York, UID # 2003-015-314, Claim No. 106293, Motion Nos. M-66191, CM-66239, Collins, J., Feb. 24, 2003). The mere fact that the garnishment of claimant’s wages was the instrumentality that reduced claimant’s net income and which caused him to suffer financial and other woes, does not constitute a cause of action against claimant’s employer or the State Comptroller. Accordingly, defendant’s cross motion to dismiss the claim for failure to state a cause of action against defendant must be granted.

To the extent claimant’s motion seeks equitable relief in the form of an order in the nature of mandamus directing the Comptroller’s Office to cease garnishing claimant’s wages or accept his proposed taxable status, the granting of such equitable relief is beyond the jurisdiction of this Court (see Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005]; Mitchell v State of New York, UID # 2006-015-122, Claim No. 111167-A, Motion No. M-71866, Collins, J., Sept. 6, 2006). Further, the punitive damages sought by claimant are not available against the State (see Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]).

Accordingly, for all of the reasons stated above, claimant’s motion will be denied.

ORDERED, that Motion No. M-73715 is DENIED, and it is further

ORDERED, that Cross Motion No. CM-73834 is GRANTED, and Claim No. 113140 is DISMISSED.

October 31, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, dated July 11, 2007;

(2) “Verified Affidavit” of Kwame O. El, executed on July 5, 2007, with exhibits;

(3) Notice of Cross-Motion, dated August 10, 2007;

(4) Affirmation of Michael T. Krenrich, dated August 10, 2007, with exhibits A-E.