New York State Court of Claims

New York State Court of Claims

MAYHEW v. THE STATE OF NEW YORK, #2007-041-014, Claim No. 113284, Motion No. M-73050


Synopsis


Claim alleging that termination as General Counsel to the New York State Crime Victim’s Board was null and void due to lack of public notice of board meeting is dismissed since Court of Claims lacks subject matter jurisdiction over challenge to administrative action of state agency.


Case Information

UID:
2007-041-014
Claimant(s):
EVERETT A. MAYHEW, JR., ESQ.
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
MAYHEW
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113284
Motion number(s):
M-73050
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
EVERETT A. MAYHEW, JR., ESQ.Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim on the ground that the Court lacks subject matter jurisdiction. Claimant was the General Counsel of the New York State Crime Victims Board (Board) from 1995 until his employment was terminated, effective November 29, 2006. Claimant’s termination was the result of a vote taken by the Board at a November 8, 2006 Board meeting. Claimant alleges that the Board’s determination to terminate his employment is “null and void” since the meeting was allegedly held without notice as required by the New York State Open Meetings Law. Claimant seeks reinstatement to his employment together with lost salary and benefits. Claimant further alleges that the Board Chairwoman falsely told him that his employment was terminated effective November 29, 2006 (the end of a state pay period) when the Board actually voted to terminate claimant “at the end of November.” Claimant alleges that “the end of November” means November 30, 2006 and that he is entitled to at least one extra day of salary and benefits.

Claimant challenges the administrative actions of the Board. “The appropriate remedy for such a challenge is a CPLR article 78 proceeding . . . and, therefore, any monetary damages would be purely incidental” (Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). In particular, the claim essentially alleges that the Board’s decision to terminate his employment without notice of the meeting was made in violation of lawful procedure (see CPLR 7803 [3]) and it is clear that “although he seeks incidental relief under contractual theories, i.e., reinstatement with back pay and benefits, the proceeding is, in essence, a CPLR article 78 proceeding falling within Supreme Court's subject matter jurisdiction” (Matter of Le Brun v Maguire, 12 AD3d 1007, 1008 [3d Dept 2004]).

In a similar situation, where a probationary state employee was terminated and sought damages in the Court of Claims, the general rule was explained:
“[C]laimant has no cause of action for damages in the Court of Claims because a successful CPLR article 78 proceeding for reinstatement is a prerequisite to a discharged public employee's claim for damages” (Adebambo v State of New York, (181 Misc 2d 181, 185 [Ct Cl 1999]; see Austin v Board of Higher Ed. of City of New York, 5 NY2d 430 [1959]; Meyers v City of New York, 208 AD2d 258, 265 [2d Dept 1995]).
Claimant offers no viable factual or legal argument why the general rule requiring a successful CPLR article 78 proceeding for reinstatement as a prerequisite to his claim for damages should not apply.

The unsigned electronic mail letter allegedly sent to claimant by claimant’s eventual replacement as general counsel does not, as suggested by claimant, mean that “the Court does not have to decide if the Board Meeting vote to dismiss the Claimant was defective, as the Board admits it by a letter from their current Counsel . . . .” The defect in any such vote, if found, and the legal ramifications thereof, if any, must first be determined within the context of an article 78 proceeding.

The case obliquely referred to by claimant as an applicable exception to the general rule with respect to a dismissal from employment that is “jurisdictionally defective,” Friedman v State of New York (24 NY2d 528 [1969]), has no applicability to the facts and circumstances of this claim. In Friedman, the claimant was removed from the office of Justice of the Supreme Court of New York State by a decision of the Court on the Judiciary. The Friedman claimant moved to vacate the decision of the Court on the Judiciary on the ground that “the court had been without jurisdiction to proceed with the matter” (Friedman, 24 NY2d at 533). The Court on the Judiciary denied the motion.

The Friedman claimant attempted to appeal the decision of the Court on the Judiciary in addition to commencing an article 78 proceeding. “Both the appeal and the article 78 proceeding were dismissed on the ground that the Appellate Division lacked jurisdiction to directly or collaterally review the jurisdiction of the Court on the Judiciary” (Friedman, 24 NY2d at 533).

The Friedman claimant then sought back judicial pay in the Court of Claims. The Court of Claims dismissed the claim on the ground that the decision of the Court on the Judiciary which denied the motion to vacate the decision removing the claimant as a Justice of the Supreme Court was res judicata as to the jurisdiction of the Court on the Judiciary. The Court of Appeals disagreed, stating, at pp. 535-536 that:
“Inherent in the lower court’s reasoning is the assumption that claimant could have directly attacked his removal by way of appeal. There is, however, no basis or authority for this view. There is no inherent right to appeal a court’s determination. The right to appeal depends upon express constitutional or statutory authorization. Section 9-a (now § 22) of article VI of the State Constitution, under which claimant was removed, establishes the Court on the Judiciary and sets forth its powers and certain procedures to be followed in removal proceedings, but nowhere in that section is a right of appeal provided for and no general constitutional or statutory provision exists for an appeal from the Court on the Judiciary.”

It was further found, at p. 536, that the Court of Claims was incorrect:

“[I]n stating broadly that a court’s determination sustaining jurisdiction against attack is res judicata in a collateral action. This is true only in a case where jurisdiction depends on a fact that is litigated in a suit and is adjudged in favor of the party who avers jurisdiction. Where, however, as in this case, a court’s determination as to subject-matter jurisdiction is a mere legal conclusion, the want of jurisdiction to render the particular judgment may always be asserted and raised directly or collaterally.”

The Friedman court thus held “that the Court of Claims had jurisdiction of the subject matter of the action, since that court, in fact, is the only forum in which the State has consented to be sued” (Friedman, 24 NY2d at 536).

With respect to the present claim, none of the unique obstacles or considerations found in Friedman are present. Claimant is entitled to question the legality of the Board meeting which resulted in his termination, and to seek reinstatement to his position, in an article 78 proceeding. The claimant in Friedman had no ability to do so except in the Court of Claims.

The Court of Claims is a court of limited jurisdiction and the powers conferred upon it do not include the authority to provide the type of equitable relief requested by claimant (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). 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 to annul an allegedly illegal agency 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]).

Finally, claimant’s characterization of defendant’s conduct as tortious in an obvious attempt to implicate the jurisdiction of the Court of Claims (see Court of Claims Act § 9 [2]) is rejected as completely without merit.

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


April 4, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed March 12, 2007;
  2. Affirmation of Belinda A. Wagner, affirmed on March 12, 2007, with annexed exhibit;
  3. Affirmation of Everett A. Mayhew, Jr., affirmed on March 21, 2007 and filed on March 22, 2007;
  4. Reply affirmation of Belinda A. Wagner, affirmed and filed on March 22, 2007.