New York State Court of Claims

New York State Court of Claims

LANSBURG v. THE STATE OF NEW YORK, #2008-041-008, Claim No. 114088, Motion Nos. M-74611, CM-74714


Claim alleging that state agencies failed to properly investigate administrative complaint and enforce applicable state laws is dismissed for lack of subject matter jurisdiction and failure to state a cause of action.

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 General
By: Michael W. Friedman, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim on the grounds that it is untimely, the Court lacks subject matter jurisdiction over the claim and the claim fails to state a cause of action. Claimant cross-moves for summary judgment. The claim arises from an investigation conducted by the New York State Department of Labor (DOL) of a complaint in which claimant alleged that her employer, Saratoga Gaming & Raceway, Inc. (SGRI), failed to provide her required meal breaks yet deducted time for such breaks in computing her pay. The claim seeks damages of $163.40 in unpaid wages and $50,000 for “[d]amaged reputation ... mental anguish [and] [l]egal services.” The claim was served on the Attorney General on August 8, 2007 and filed with the Clerk of the Court of Claims on August 15, 2007.

The DOL investigation was concluded in November 2006 by a letter to claimant in which claimant was offered $163.40 in full resolution of “all matters pertaining to payment of unpaid wages.” Claimant apparently refused the offered payment and unsuccessfully requested further investigations by various New York State agencies.

Defendant moves to dismiss the claim as untimely (see Court of Claims Act § 10 [3] and [3-b]) since the claim was not filed within ninety days of the completion of the challenged Labor Department investigation which defendant asserts triggered accrual of the claim. Claimant argues that the claim did not accrue until July 20, 2007, when she received materials provided by DOL pursuant to a Freedom of Information Law request.

In addition, it should be noted that claimant does not limit her improper investigation claim to the DOL investigation but further alleges that “[v]arious NYS agencies did not do a credible investigation on my labor complaint” due to “complete bias in favor of my employer, Saratoga Gaming & Raceway, Inc.”

Even accepting claimant’s accrual date for the sake of argument, and assuming that the claim was timely filed and served, the Court is compelled to dismiss the claim for lack of subject matter jurisdiction and failure to state a cause of action.

The claim alleges that defendant failed or refused to investigate her complaints against SGRI and failed to enforce various state laws. The Court lacks subject matter jurisdiction over such a claim. Claimant challenges the discretionary administrative actions or inactions of various state agencies. “The appropriate remedy for such a challenge is a CPLR article 78 proceeding” (Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). In particular, claimant alleges that defendant has failed to perform a duty it was mandated to perform by law. Thus, the claim is in the nature of a mandamus to compel and such relief is available, if at all, only by way of an Article 78 proceeding, commenced in Supreme Court (Matter of McCullough v State of New York, 278 AD2d 709 [3d Dept 2000], lv dismissed 96 NY2d 754 [2001], lv denied 96 NY2d 706 [2001]).

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 compel action by a state agency), 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]).

In City of New York v State of New York, 46 AD3d 1168, 1169-1170 [3d Dept 2007]), the court explains that:
“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]).”
That money damages is not the essential element of the claim is demonstrated by claimant’s refusal of the $163.40 check offered to her which sought to satisfy in full her unpaid wages claim.

In order for the Court to award claimant damages in this action, it would necessarily have to review the investigative determinations of the involved state agencies which, as set forth above, it cannot do.

The claim also fails to state a cause of action. Despite claimant’s belated assertion in response to defendant’s summary judgment motion that the defendant’s alleged acts and omissions were “deliberate” rather than “negligent,” it is clear that the claim alleges "negligent investigation . . . [which] is not actionable in New York" (Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]; see McWilliams v New York City Comm. on Human Rights, 239 AD2d 105 [1st Dept 1997]).

As a final point, it should be noted that “[a] public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory result--may subject the municipal employer to liability for negligence” (Lauer v City of New York, 95 NY2d 95, 99 [2000]). DOL’s investigation, and its determination not to further proceed against SGRI, were clearly discretionary acts for which DOL may not be subjected to liability for negligence.

The defendant’s motion for summary judgment is granted and the claim is dismissed.

In view of the foregoing, the Court need not consider claimant’s cross-motion for summary judgment.

April 24, 2008
Albany, New York
Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed February 23, 2008;
  2. Affirmation of Michael W. Friedman, affirmed on February 28, 2008, with annexed exhibits;
  3. Notice of Cross-Motion, filed March 25, 2008;
  4. Affirmation of Jean Ann Lansburg, affirmed on March 21, 2008 and annexed exhibits;
  5. Affirmation in Opposition to Cross-Motion of Michael W. Friedman, affirmed on April 7, 2008.