New York State Court of Claims

New York State Court of Claims

BARRY v. NEW YORK STATE DEPARTMENT of LABOR and NEW YORK STATE, #2009-038-503, Claim No. 115776, Motion Nos. M-75575, M-75696


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):
M-75575, M-75696
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages for nine weeks of unpaid unemployment insurance benefits to which claimant alleges she is entitled. Claimant served the claim on defendant on September 8, 2008. Claimant thereafter served a motion for summary judgment on the issue of liability and an inquest to determine the amount of compensatory and punitive damages on defendant on September 19, 2008, prior to the service of any answer to the claim. Defendant State of New York opposes her motion as premature, and also makes a pre-answer motion to dismiss the claim for lack of subject matter jurisdiction. Claimant opposes defendant’s motion. Turning first to defendant’s motion to dismiss, Court of Claims Act § 9 constitutes a limited waiver of the State’s sovereign immunity, and it authorizes the Court of Claims “[t]o hear and determine a claim of any person, corporation or municipality against the state for the appropriation of any real or personal property or any interest therein, for the breach of contract, express or implied, or for the torts of its officers or employees while acting as such officers or employees” (Court of Claims Act § 9[2]). The Court of Claims lacks jurisdiction to grant equitable relief, including such relief as directing a State agency to pay money claimed by a party who alleges an incorrect administrative decision – such disputes are governed by Article 78 of the CPLR (see Madura v State of New York, 12 AD3d 759 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). Whether this claim falls within or outside of the jurisdiction of this Court requires an analysis of “[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim” (Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

The claim, as elaborated upon in claimant’s affidavit in support of her motion for summary judgment, seeks compensation for unemployment benefits that were unpaid by the Department of Labor (DOL) during claimant’s second benefit year. She contends that despite two decisions of an Administrative Law Judge (ALJ) stating that she was allowed benefits,[1] defendant has refused to pay benefits to which she is entitled. She argues that she is entitled to damages for the non-payment of these benefits. DOL’s position is that notwithstanding the ALJ’s decision that claimant was allowed benefits, she is not qualified for the payments she demands because she did not exhaust her benefits during her first benefit year, and she did not submit a new original claim for benefits for a second benefit year. There is no factual dispute that claimant did not exhaust her benefits or submit a new claim. In essence, in this claim, the parties are disputing as to whether claimant was required to satisfy those two requirements before she would qualify to collect payments, or, stated differently, whether the DOL correctly determined that she should not be paid the benefits she seeks.

This dispute, although ultimately involving money, is “a quintessential example of a dispute governed under CPLR article 78” (Madura v State of New York, supra, at 761; see Babitch v State of New York, UID # 2005-032-016, Claim No. 109242, Motion Nos. M-68675, M-69076, M-69211, Hard, J. [Feb. 23, 2005]). Even though the claim seeks money damages, such damages are incidental to the primary issue of whether the DOL has correctly decided to withhold payments from claimant (see Madura, supra; Guy v State of New York, 18 AD3d 936 [3d Dept 2005]; Lublin v State of New York, 135 Misc 2d 419, 420 [Ct Cl 1987], affd 135 AD2d 1155 [1st Dept 1987], lv denied 71 NY2d 802 [1988] [“collateral review [of an administrative decision] may not be sought under the guise of money damages”]; Mayhew v State of New York, UID # 2007-041-014, Claim No. 113284, Motion No. M-73050, Milano, J. [Apr. 4, 2007]). Thus, the Court of Claims lacks jurisdiction over this claim, and it must be dismissed.

In light of the above, claimant’s motion for summary judgment will be denied as moot. It is noted, however, that the motion, filed before defendant filed and served an answer to the claim and before any discovery had been conducted, was premature and would have been denied on that ground had the Court had jurisdiction over this claim (see CPLR 3212[a]).

ORDERED, that Defendant’s Motion No. M-75696 is GRANTED, and Claim No. 115776 is DISMISSED, and it is further

ORDERED, that Claimant’s Motion No. M-75575 is DENIED as moot.

January 8, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115776, filed September 4, 2008;

(2) Notice of Motion (No. M-75575) dated September 19, 2008;

(3) Affidavit in Support of Veronica Barry, sworn to September 19, 2008, with Exhibits A-J;

(4) Affirmation in Opposition of Thomas R. Monjeau, AAG, dated October 15, 2008, with

Exhibits A-B;

(5) Notice of Motion to Dismiss (No. M-75696) dated October 15, 2008;

(6) Affirmation in Support of Thomas R. Monjeau, AAG, dated October 9, 2008, with

Exhibit A;

(7) Affidavit of Alex Bassallo, sworn to October 10, 2008;

(8) Affidavit of Veronica Barry in Opposition to Defendants’ Motion to Dismiss and

In Reply to Defendants’ Opposition to Claimant’s Motion for Summary Judgment, sworn to

October 18, 2008, with Exhibits A-B.

[1]. The Department of Labor initially determined that claimant was disqualified from receiving unemployment benefits because she had lost her employment through misconduct (see Claimant’s Affidavit in Support, sworn to September 19, 2008, Exhibit A). After a hearing, the ALJ found that claimant’s behavior did not constitute misconduct for Unemployment Insurance purposes, and overruled that determination (id.). When her employer failed to appear for a hearing on its application to reopen, the ALJ adhered to his prior conclusion that “claimant is allowed benefits” (id. Exhibit B).