New York State Court of Claims

New York State Court of Claims
STARKER v. THE STATE OF NEW YORK, # 2010-030-510, Claim No. 117299, Motion No. M-77400


Motion to dismiss claim concerning adverse unemployment insurance determinations granted. Exclusive method for challenging same set forth in Labor Law. Judicial review after administrative remedies exhaustion may be sought only in Appellate Division, Third Department according to Labor Law 624. No subject matter jurisdiction.

Case information

UID: 2010-030-510
Claimant(s): OSCAR STARKER
Claimant short name: STARKER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117299
Motion number(s): M-77400
Cross-motion number(s):
Claimant's attorney: OSCAR STARKER, PRO SE
Third-party defendant's attorney:
Signature date: January 25, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on defendant's motion:

1,2 Notice of Motion; Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, and attached exhibit

3,4 Affidavit in Opposition to Defendant's Motion to Dismiss by Oscar Starker, Claimant and attached exhibits

5,6 Filed papers: Claim, Answer

Oscar Starker alleges in that he was denied unemployment benefits without good cause for a base period starting on either October 1, 2008, or October 1, 2007, and was denied procedural due process by the delayed decision-making on the part of the New York State Department of Labor. [Claim Number 117299, 2]. He asserts a date of accrual of July 1, 2009, and seeks damages in the amount of $65,925.00 for the denied unemployment benefits, for a denial of "the benefits under the credit protector program from the different credit cards . . . and [for reimbursement of] borrowed . . . money from the high interest credit cards to pay the bills while being unemployed." [Ibid. 4 and 5]. In its answer, in addition to general denials, the defendant raises five affirmative defenses including immunity for discretionary determinations and a failure to exhaust administrative remedies.

Although not raised in the answer, the State now moves to dismiss the claim based upon the lack of subject matter jurisdiction. Since the lack of subject matter jurisdiction of the Court over the claim may not be waived, the failure to raise the defense in the answer does not preclude defendant's present application and, indeed, the subject matter jurisdiction of the Court may be raised at any time as well as on the Court's own motion. See e.g. Hoffman v State of New York, 42 AD3d 641 (3d Dept 2007).

The Court of Claims is a court of limited jurisdiction, that may only exercise jurisdiction in cases or controversies for money damages in which the State or - certain statutorily prescribed entities - is a party. Court of Claims Act 9. It does not render declaratory judgments except under very limited circumstances not present here [Court of Claims Act 9 (9-a)] nor does it review the determinations of administrative agencies. The Court is empowered to render money judgments [see Court of Claims Act 9(4)], but does not have the power to grant equitable relief unless it is incidental to the primary claim for damages. Thus, "in determining the subject matter jurisdiction of the Court of Claims, 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' (Matter of Gross v Perales, 72 NY2d 231, 236 [1988])." Madura v State of New York,12 AD3d 759, 760 (3d Dept 2004) lv denied 4 NY3d 704 (2005).

Whatever the manner in which claimant has chosen to characterize this claim, the underlying issues concern adverse unemployment insurance determinations, that are first challenged administratively, and then may be subject to judicial review through the vehicles provided by statute or rule. With regard to unemployment insurance determinations even more specifically,

"Labor Law 626 makes it clear that the procedures set forth in Labor Law 620 through 625 are the exclusive method for challenging unemployment insurance determinations (see Vartanian v Research Found. of State Univ. of N.Y., 227 AD2d 744, 746 [1996], appeal dismissed 88 NY2d 1053 [1996], lv dismissed and lv denied 89 NY2d 965 [1997]. . . Pursuant to Labor Law 624, a party seeking review of a decision of the Unemployment Insurance Appeal Board must file an appeal with . . . [the Appellate Division, Third Department] within 30 days of the mailing or personal delivery of such decision . . . [I]t does not appear from the present record that claimant took an administrative appeal from the subsequent determination of the Department of Labor reducing his eligibility period and applying a set-off. Inasmuch as the foregoing statute does not contemplate review by the Court of Claims and claimant failed to follow the exclusive procedure for review detailed in the Labor Law, the Court of Claims properly concluded that it was without jurisdiction and dismissed the claim." Prowse v State of New York, 4 AD3d 581, 582 (3d Dept 2004).

From the claim it is not clear whether claimant exhausted his administrative remedies with regard to the unemployment benefits determination. Regardless, once such remedies are exhausted, under Labor Law 624 judicial review of the final administrative determinations made by the Unemployment Insurance Appeal Board must be sought in the Appellate Division of the Supreme Court, Third Department. It is the exclusive remedy. Prowse v State of New York, supra; see also Barry v New York State Department of Labor and New York State, UID #2009-038-503, Claim No. 115776, Motion Nos. M-75575, M-75696 (DeBow, J., January 8, 2009); Babitch v State of New York, UID #2005-032-016, Claim No. 109242, Motion Nos. M-68675, M-69076, M-69211(Hard, J., February 23, 2005).

The balance of the claim concerns purported denials of federal procedural due process based upon the untimely scheduling of hearings, and delays in issuing a decision (or decisions), causing claimant to allegedly incur money damages because he utilized credit cards to pay for his living expenses, and then was charged excess interest thereby and suffered a negative impact on his credit rating. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution, see Lyles v State of New York, 2 AD3d 694 (2d Dept 2003) affd 3 NY3d 396 (2004). A claim alleging deprivation of a right to procedural due process is based upon a violation of the Federal Constitution, and should be pursued pursuant to 42 USC 1983. Such a cause of action may not be brought in the Court of Claims because the State is not a "person" amenable to suit pursuant to 42 USC 1983.

Based on the foregoing, defendant's motion to dismiss is hereby granted, and Claim Number 117299 is in all respects dismissed because the Court lacks subject matter jurisdiction.

January 25, 2010

White Plains, New York


Judge of the Court of Claims