New York State Court of Claims

New York State Court of Claims

BIRAN v. THE STATE OF NEW YORK, #2007-041-010, Claim No. 112224, Motion No. M-71867


Claim seeking damages based upon alleged misrepresentation of defendant, made in course of claim for unemployment benefits, is dismissed based upon res judicata, failure to timely file and serve the claim and lack of subject matter jurisdiction over the claim.

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:
Defendant’s attorney:
New York State Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 20, 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 filed and served.

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

The claim seeks recovery of money damages in the sum of $14,175.00 arising from unemployment insurance benefits claimant was ordered to repay to the New York State Department of Labor. According to the claim, the Department of Labor issued the repayment order in November of 2002. Claimant alleges that the repayment order resulted from following erroneous legal advice he received over the telephone from a Department of Labor employee regarding the consequence of an extant family owned corporation on his eligibility for unemployment benefits.

The claim was filed on April 18, 2006 and alleges an accrual date of February 28, 2006 which, according to the claim, “is the date in which the DOL refused to reopen the case and consider the wrongdoing of its employees.”

The claim has not been served on the Attorney General.

Claimant’s response to the motion shows that claimant unsuccessfully pursued administrative relief regarding the disputed $14,175.00 against the Department of Labor. In particular, claimant admits that he raised the misrepresentation issue in the administrative proceeding, but complains that the “judge was not interested at all in the fact that Plaintiff had been misled by the DOL claims specialist.” Further, claimant states that he thereafter “appealed this decision to a higher court [apparently the Unemployment Insurance Appeal Board], and finally [represented by counsel] to the Third Appellate Court.”

As a result of claimant’s appeal of the decision of the Unemployment Insurance Appeal Board, the very same facts and issues advanced in the present claim were considered and resolved in Matter of Biran (Commissioner of Labor), (10 AD3d 790 [3d Dept 2004]) in which the court found, at p. 791, that:
“[S]ubstantial evidence supports the Board’s finding that he was not totally unemployed . . . . Although claimant admitted that he read the unemployment insurance booklet advising him of the need to report work done in connection with a family business before certifying for benefits, he maintained that this did not apply to him. Thus, the Board properly charged him with a recoverable overpayment and reduced his right to receive future benefits.”

The claim is barred by the doctrine of res judicata, as described in Parker v Blauvelt Volunteer Fire Co., Inc. (93 NY2d 343, 347-348 [1999]):

“Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action . . . . As a general rule, ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’ (O'Brien v City of Syracuse, 54 NY2d 353, 357; Matter of Reilly v Reid, supra, at 30). Thus, where a plaintiff in a later action brings a claim for damages that could have been presented in a prior CPLR article 78 proceeding against the same party, based upon the same harm and arising out of the same or related facts, the claim is barred by res judicata.”

Both the prior administrative proceeding and the present claim sought an order or judgment invalidating the determination which ordered repayment to the Department of Labor of the $14,175.00 in disputed unemployment insurance benefits. In a similar situation, in McMillian v State of New York (267 AD2d 78 [1st Dept 1999], lv denied 95 NY2d 757 [2000], rearg denied 95 NY2d 888), the court affirmed a Court of Claims decision “dismissing claimant's claim that his liquor license was fraudulently canceled by the State Liquor Authority . . . on the ground that claimant's remedy for the fraudulent or otherwise illegal cancellation of his license is a CPLR article 78 proceeding . . . which remedy plaintiff had already unsuccessfully pursued.”

The claim must also be dismissed for lack of timely filing and for a failure of service upon the Attorney General.

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]).

“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]).

The record shows that the claim accrued as early as the November, 2002 notice to claimant from the Department of Labor requiring repayment of the unemployment benefits, and certainly no later than the issuance of the Third Department Appellate Division decision in 2004.

In this scenario, there is no applicability of the continuing violation doctrine which “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 Department of Labor determination requiring return of the unemployment benefits. The defendant’s failure to refund the money in response to claimant’s further demands after claimant unsuccessfully pursued an administrative remedy and judicial appeal 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]).

Finally, claimant endeavors to challenge an allegedly incorrect administrative determination of the defendant. 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]).

For all of the foregoing reasons, the defendant’s motion to dismiss is granted. The claim is dismissed.

March 20, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed June 13, 2006;
  2. Affirmation of Kathleen M. Arnold, affirmed on June 12, 2006, with annexed exhibits;
  3. Claimant’s unsworn answer to defendant’s motion, filed June 26, 2006.