New York State Court of Claims

New York State Court of Claims

KOVACHEVICH v. THE STATE OF NEW YORK, #2007-041-005, Claim No. 111749, Motion No. M-72763


Claim challenging tax liability determination of defendant dismissed based upon failure to timely file and serve the claim and upon lack of subject matter jurisdiction over claim.

Case Information

1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Lazar S. KovachevichPro Se
Defendant’s attorney:
New York State Attorney GeneralBy: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim on the ground that the Court lacks jurisdiction because the claim was not timely served. Claimant opposes the motion and requests a default judgment against the defendant.

Defendant’s motion to dismiss is granted and claimant’s request for a default judgment is denied.

The claimant requests a refund of income taxes allegedly overpaid by claimant to defendant with respect to the 1995 and 1996 tax years. In his opposition to the defendant’s motion to dismiss, claimant asserts that the claim also includes a cause of action against the City of New York for a refund of taxes allegedly overpaid during the 1996 tax year and a cause of action for recovery of “stolen money by the act of piracy executed by the Defendant in July 2004.”

The claim was filed on December 19, 2005 and set forth an accrual date of September 15, 2005. The claimed accrual date is based upon a letter received by claimant on September 15, 2005 which claimant identifies as a “Collection Notice and Consolidated Statement of Tax Liabilities.” The claim was not served on the Attorney General until November 24, 2006.

Despite the allegation of an “act of piracy” by the defendant, it appears that the claim essentially alleges that the defendant improperly computed the tax liability of claimant. Pursuant to Court of Claims Act § 10(3):
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim. . . .”

Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]). The claim therefore must be dismissed for failure to serve the claim upon the Attorney General in a timely manner.

The claim and claimant’s papers in opposition to the motion demonstrate that in addition to failing to timely serve the Attorney General, the claimant did not file the claim in a timely manner. The documents attached to the claim show that claimant has disputed the subject tax computations over the course of many years prior to filing a claim. In his opposition papers, claimant admits that he “is for years in despute with the Defendant. For the years the Claimant is requesting a refund of overpaid taxes.”

Claimant’s attempt to cure the untimeliness of service of the claim by characterizing the allegedly wrongful tax computation as a continuing claim against defendant is unavailing. “A cause of action accrues upon the occurrence of all events essential to the claim such that the [claimant] would be entitled to judicial relief” (Utica Mut. Ins. Co. v Avery, 261 AD2d 802, 803 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). In particular, “a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable” (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997]; lv denied 91 NY2d 814 [1998]).

Claimant’s own statements and documents show that his purported damages were ascertainable for many years prior to filing of the claim.

The continuing violation doctrine “is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act . . . [and] may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]). The wrongful act alleged by claimant is the allegedly mistaken tax computation of which claimant was admittedly aware for many years. The defendant’s failure to refund the money in response to claimant’s further demands to recompute his tax liability cannot support a finding of a continuing violation (see Commack Self-Service Kosher Meats Inc. v State of New York, 270 AD2d 687, 688-689 [3d Dept 2000]).

Claimant endeavors to challenge an allegedly incorrect administrative determination of the defendant which resulted in the claimed overpayment of taxes. Had the claim been timely filed and served the Court would still be required to dismiss it on the basis of a lack of subject matter jurisdiction. The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as annulment of an administrative determination), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

The jurisdictional question at issue is not unlike that decided by the court in Guy v State of New York (18 AD3d 936, 937 [3d Dept 2005]):
“[A] plain reading of the claim reveals that claimant is seeking annulment of the Department’s administrative determinations which resulted in the issuance of a tax compliance levy and the refusal to return the money to claimant. This is ‘a quintessential example of a dispute governed under CPLR article 78’ (Madura v State of New York, [12 AD3d 759] at 761) and it is well settled that ‘[t]he Court of Claims lacks subject matter jurisdiction of a cause of action where the primary relief sought is obtainable in an article 78 proceeding, regardless of how a claimant characterizes his [or her] claim’ (Young v State of New York, 179 Misc 2d 879, 882 [1999]).”

Defendant’s motion to dismiss is granted. The claim is dismissed.

February 14, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed December 29, 2006;
  2. Affirmation of Glenn C. King, affirmed on December 29, 2006, with annexed exhibit;
  3. Claimant’s unsworn opposition to defendant’s motion, filed January 17, 2007;
  4. Claimant’s unsworn request for oral argument, for testimony of witnesses and for a jury trial, filed February 2, 2007.