New York State Court of Claims

New York State Court of Claims

OCCHIOGROSSO v. THE STATE OF NEW YORK, #2008-033-309, Claim No. 113595, Motion Nos. M-74187, CM-74647


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):
James J. Lack
Claimant’s attorney:
Law Offices of Stanley E. Orzechowski, P.C.By: Stanley E. Orzechowski, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises due to the alleged damages to Jean Occhiogrosso, individually and Jean’s Group Family Day Care (hereinafter “claimants”). Claimants raise several causes of action against the State of New York (hereinafter “defendant”). The claim arose on January 19, 2007.

Claimant Occhiogrosso (hereinafter “claimant”) operates Jean’s Group Family Day Care (hereinafter “Day Care Center”) in Manorville, New York. Claimants allege that defendant, through the New York State Office of Children and Family Services, and more specifically, Craig Hassel (hereinafter “Hassel”), an employee of the agency, engaged in a “vendetta” against claimants which culminated in the revocation of claimant’s license to operate the Day Care Center.

According to the parties’ papers, the revocation was based upon visits by Hassel to the Day Care Center on a number of occasions. During those visits, Hassel noted several violations. A hearing was held before an administrative law judge (hereinafter “ALJ”) on June 7, July 19, August 24, September 12, and September 26, 2007. As a result of the hearing, the ALJ made findings of fact concerning the violations. The ALJ reached a determination that claimants violated several day care regulations related to child safety. The ALJ further found that the agency acted within the scope of its powers of supervision and enforcement in suspending and revoking claimants’ license.

Claimants served the instant claim upon the Attorney General’s Office on April 18, 2007 and filed it with the Clerk’s Office on April 17, 2007. Subsequent to the decision of the ALJ, claimants instituted a CPLR Article 78 proceeding in Supreme Court challenging the findings and decision of the ALJ.

Defendant moves this Court to dismiss the claim on the grounds the Court lacks subject matter jurisdiction, failure to state a cause of action, and issue preclusion. Defendant also moves this Court to amend its answer to include an affirmative defense of collateral estoppel[1]. Defendant argues the Court lacks subject matter jurisdiction over the claim in that claimant is actually seeking equitable relief by asking this Court to review the decision of the ALJ. In addition, defendant argues claimants are collaterally estopped from relitigating this matter in the Court of Claims because they had a full and fair opportunity to be heard before the ALJ.

Claimants oppose defendant’s motion in all respects. However, claimants, in the event the Court finds that it lacks subject matter jurisdiction, asks that the Court transfer those causes of action for which there is a lack of subject matter jurisdiction to Supreme Court.
Claimants present the Court with the following nine causes of action:
  1. Violation of claimants['] constitutional and civil rights to due process and equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution, the Constitution of the State of New York, and the laws of the United States and the State of New York giving rise to the lawful claims and causes of action and requests for relief under 42 USC §[§] 1983, 1985 & 1988;

  1. Negligent hiring, retention, and supervision of the Defendant's officers and employees;
  1. Negligent infliction of mental and emotional distress;
  1. Intentional infliction of mental and emotional distress;
  1. Prima Facie Tort;
  1. Abuse of Process;
  1. Violation of the official oaths duties and office of the Defendant and it's officers and employees;
  1. Defamation both by libel and slander with respect to both the individual claimant and the business reputation and economic interests of her day care facility; and
  1. Interference with the contractual relationships, and economic advantage and business interests of the claimants.
The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, §7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, §7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.

(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const. Art. VI, §9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of The State of New York, 40 AD2d 225).

The cause of action by claimants which alleges a violation of 42 U.S.C. §§ 1983, 1985 and 1988 must be dismissed. The Court of Claims does not have jurisdiction over federal constitutional tort claims as the State is not a person within the meaning of 42 U.S.C. 1983 (Will v Michigan Dept. of State Police, 491 US 58; Monell v Dept. of Social Services of City of New York, 436 US 658).

The Court turns its attention to claimants’ remaining causes of action. Initially, the Court must determine whether or not it has subject matter jurisdiction over the causes of action. To determine if the Court has subject matter jurisdiction two inquiries must be made. The court, in City of New York v State of New York, 46 AD3d 1168, 1169, states:
Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has "no jurisdiction to grant strictly equitable relief" (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671, [1997]), "the threshold question is '[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim'" (Madura v State of New York, 12 AD3d 759, 760, [2004], lv denied 4 NY3d 704, [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236, [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642, [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757, [1991]).

Claimants clearly couch their causes of action in a way to recover money damages. However, in order for this Court to award claimants damage it must review and/or relitigate the findings previously made by the ALJ. As previously stated, this Court is without the power to review those determinations which are more appropriately decided by an Article 78 proceeding in Supreme Court.

Based upon the foregoing, defendant’s motion is granted and the claim is dismissed in its entirety. The Clerk of the Court is directed to close the file. The remainder of the parties’ motions are denied as moot.

September 26, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers were read and considered on Defendant’s motion and Claimants’ Cross-Motion: Notice of Motion to Dismiss dated November 7, 2007 and filed November 8, 2007; Affirmation of Anne C. Leahey, Esq. with annexed Exhibits A-B dated November 2, 2007 and filed November 8, 2007; Defendant’s Memorandum of Law in Support of Motion to Dismiss dated November 5, 2007 and received November 8, 2007; Notice of Cross-Motion dated March 5, 2008 and filed March 10, 2008; Affirmation of Stanley E. Orzechowski, Esq. with annexed Exhibits 1-19 dated March 5, 2008 and filed March 10, 2008; Claimants Memorandum of Law in Opposition to the States Motion to Dismiss and in Support of the claimants Omnibus Cross-Motion dated March 5, 2008 and received March 10, 2008; Defendant’s Memorandum of Law in Reply to Claimants’ Opposition to Defendant’s Motion to Dismiss and in Answer to Claimants’ Motion for Summary Judgment with annexed Exhibit A dated May 2, 2008 and received May 8, 2008; Claimants Reply Memorandum of Law with annexed Exhibits 1-4 dated May 20, 2008 and received May 21, 2008.