New York State Court of Claims

New York State Court of Claims

TORIOLA v. NEW YORK STATE ATTORNEY GENERAL, #2007-041-043, Claim No. 112801, Motion No. M-73786


Claim seeking damages for conversion of tax refund dismissed based upon failure to timely file and serve the claim and lack of subject matter jurisdiction.

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: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim on the grounds that the Court lacks jurisdiction because the claim was not timely filed and served and additionally asserts that the Court lacks subject matter jurisdiction over the substance of the claim. The claim seeks recovery of money damages in the sum of $1315.51 arising from payment of claimants’ tax refund in that amount by the New York State Department of Taxation and Finance to the New York State Department of Labor for unemployment insurance benefits overpayments to claimant Titus Toriola. The determination of the Department of Labor requiring payment of claimants’ tax refund to satisfy the unemployment insurance benefits overpayments was made on September 28, 2001.

Although the claim alleges that the claim accrued on February 27, 2006, the statement of tax refund of the Department of Taxation and Finance attached to the claim is dated February 17, 2006. The claim was filed with the Clerk of the Court of Claims on September 25, 2006 and served on the Attorney General on June 18, 2007.

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. . . .”
“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]).

Claimants’ alleged damages of $1315.51 were ascertainable, at the latest, on or about February 17, 2006, although the Department of Labor overpayments determination on which the claim is ultimately based suggests an accrual date as early as September 28, 2001.

The claim was neither served nor filed within ninety (90) days of its accrual, whether the accrual date is deemed February 27, 2006 as alleged by claimants, or September 28, 2001, the date of the Department of Labor determination.

Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] 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]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

Claimants have failed to timely file and serve the claim and the Court therefore lacks jurisdiction over the claim.
Claimants essentially 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]).

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 claimants (Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]).

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

September 5, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion #M-73786 in Claim #112801, filed July 26, 2007;
  2. Affirmation of Belinda A. Wagner, dated July 26, 2007, with annexed exhibits;
  3. Affidavit of Titus Toriola, sworn to August 14, 2007, with annexed exhibits.