New York State Court of Claims

New York State Court of Claims
MICELI v. STATE OF NEW YORK, # 2009-031-066, Claim No. 116867, Motion No. M-76892


Court lacks jurisdiction over claim seeking primarily equitable relief relating to overturning administrative decision to freeze assets pending investigation. Further, collateral estoppel bars re-litigating all issues except for allegation that agency is taking to long to conclude investigation.

Case information

UID: 2009-031-066
Claimant(s): JOSEPH MICELI
Claimant short name: MICELI
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116867
Motion number(s): M-76892
Cross-motion number(s):
Claimant's attorney: JOSEPH MICELI, PRO SE
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 22, 2009
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1. Defendant's Notice of Motion, filed June 25, 2009;

2. Affirmation of Bonnie Gail Levy, Esq., dated June 23,2009, with attached exhibits;

3. "Claimant's Answer to Defendant's Motion to Dismiss," sworn to July 13, 2009;

4. Filed Documents: Claim.

With this motion, filed in lieu of an Answer, Defendant seeks dismissal of the claim, asserting that Claimant has failed to set forth a valid cause of action, that the Court does not have subject matter jurisdiction over the claim and that the claim is barred by the principles of res judicata or collateral estoppel. In his claim filed on May 15, 2009, Mr. Miceli alleges that Defendant illegally confiscated a $7,500.00 check that he received while in the custody of the Department of Correctional Services. The parties agree that, following Claimant's April 2004 receipt of the $7,500.00 check, Defendant froze the proceeds of the check in Claimant's inmate account pending an investigation into the source of the funds by the Inspector General's Office. The reason for the investigation relates to the fact that the crime for which Claimant is incarcerated was the robbery of an armored car. During that robbery, a guard was shot and $28,000.00 was stolen. Less than $100.00 of that $28,000.00 was ever recovered. The funds in Claimant's account were frozen, apparently due to suspicions that those funds may have come from the $28,000.00 that was never recovered.

In a motion to dismiss a claim, the pertinent provisions of 3211(a)(7) of the Civil Practice Law and Rules provide that a ". . . party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the pleading fails to state a cause of action . . ." In such a motion, the movant, here Defendant, is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether the facts asserted adequately set forth a viable cause of action (see Stukuls v State of New York, 42 NY2d 272, 275; cf. Rovello v Orofino Realty Co., Inc., 40 NY2d 633).

In support of its motion, Defendant asserts that this Court lacks subject matter jurisdiction over the claim because the relief Claimant seeks (a determination that the Inspector General improperly froze the proceeds of the check pending its investigation) is primarily equitable in nature and that granting Claimant access to the $7,500.00 is only incidental to that determination. I agree. When the nature of a claim involves primarily a review of an administrative determination (here the determination to initiate an investigation and freeze Claimant's inmate account), the proper forum is the Supreme Court, pursuant to Article 78 of the CPLR, and not the Court of Claims (Matter of Gross v Perales, 72 NY2d 231). The analysis of the standard for determining when a claim is primarily equitable in nature set forth in Safety Group No. 194 v State of New York (2001 WL 939747 [Ct Cl, 2001], affd 298 AD2d 785) was appropriately cited by Defendant:

"(1) A money claim is incidental to relief sought in an Article 78 proceeding if a natural or automatic result of a favorable determination on the issues would be reimbursement, restitution or payment of the sums in question, without the necessity of a separate judicial order or direction, and (2) a money damage claim is incidental to relief sought in an Article 78 proceeding when, in order to award the money judgment, the court must engage in the type of inquiry and analysis that is appropriate to such a proceeding and inappropriate to an action at law."

Here, in order to prevail in his quest to have the funds in his inmate account released, Claimant must first demonstrate that the Inspector General's discretionary decision to freeze Claimant's account and investigate the source of the funds was without authority. Accordingly, the appropriate forum for such a proceeding is in Supreme Court (see Matter of Gross v Perales, 72 NY2d 231 supra; Harvard Fin. Servs. v State of New York, 266 AD2d 685).

Alternatively, Defendant has adequately demonstrated its right to the requested relief based upon the principles of res judicata/collateral estoppel. In 2005, Claimant commenced an Article 78 proceeding concerning the identical subject matter presented here. After a review of the merits, the Honorable Thomas J. Spargo decided the matter in Defendant's favor (Defendant's Exhibit D). As stated by the Court of Appeals in O'Brien v City of Syracuse (54 NY2d 353, 357), "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 seeking a different remedy."

I find that the only issue presented in this claim that was not already determined by Justice Spargo, relates to Claimant's assertion that the Inspector General's office has taken an unreasonably long time to conclude its investigation. This issue, however, again involves a review of the Inspector General's decision to continue its investigation and the freeze on Claimant's account. Accordingly, for the reasons set forth above, the proper proceeding to resolve such an issue is an Article 78 proceeding in Supreme Court.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety.

December 22, 2009

Rochester, New York


Judge of the Court of Claims