New York State Court of Claims

New York State Court of Claims
EL-BEY v. THE STATE OF NEW YORK, # 2013-038-512, Claim No. 121813, Motion No. M-82727


Claim for damages flowing from alleged failure by State Division of Licensing to renew or re-issue claimant's security guard identification card dismissed for lack of subject matter jurisdiction. Notwithstanding the claim's assertion of a tort in the nature of breach of fiduciary, the essential nature of the claim review of agency inaction that is properly asserted in an Article 78 petition.

Case information

UID: 2013-038-512
Claimant(s): KALIHIL EL-BEY
Claimant short name: EL-BEY
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended sua sponte to reflect the State of New York as the only proper defendant in this claim.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121813
Motion number(s): M-82727
Cross-motion number(s):
Claimant's attorney: KALIHIL EL-BEY, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 11, 2013
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant pro se has filed this claim seeking damages in the nature of lost income that he claims to have suffered as a consequence of the alleged failure of the State Division of Licensing Services to issue him a security guard identification card which, he alleges, is necessary for his employment as a security guard. In lieu of answer, defendant has moved to dismiss the claim on the ground that this Court lacks jurisdiction over the claim. Claimant opposes the motion.

The Court of Claims's subject matter jurisdiction "is limited to actions seeking money damages against the State in appropriation, contract or tort cases" (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997], citing Court of Claims Act 9 [2]; Psaty v Duryea, 306 NY 413, 416 [1954]). "As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief . . . [T]hus, 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 incident to the primary claim' " (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988] [internal citations omitted]). The essential nature of the claim is not necessarily defined by the litigant's characterization of the claim (see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142 [3d Dept 2009], lv denied 12 NY3d 712 [2009] [claim alleged constitutional violations and fraud attendant to revocation of operating licenses]; Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007] [claim seeking withheld back pay from State Comptroller alleged breach of contract]; Madura, 12 AD3d at 761 [claim for denial of grant application alleged breach of implied contract]), but rests upon the issues presented in the claim (see Sidoti v State of New York, 115 AD2d 202, 203-204 [3d Dept 1985]).

Here, the claim asserts that defendant breached a fiduciary duty arising from article 7-A of the General Business Law, which is entitled the "Security Guard Act." The claim alleges that claimant arrived at the office of the State Division of Licensing Services in New York City, that he paid the processing fee required to renew his security guard identification card, but that the Division of Licensing Services did not process his identification card. The claim also alleges that claimant thereafter complied with all the re-certification requirements of which he was notified, and that he notified defendant of that compliance. The claim asserts that claimant has lost employment, income, and property due to the alleged breach of fiduciary duty, and he seeks damages in the amount of $150.00 per day of lost employment.

Notwithstanding claimant's characterization of the claim as one sounding in the tort of breach of fiduciary duty, it is manifest that the issue presented by the claim is whether the defendant failed to perform a duty when it did not process his renewal application, and/or whether it made an arbitrary and capricious decision to not reissue claimant's identification card (see generally General Business Law 89-m [renewal of registration cards]). Specifically, the Court must consider whether in failing to renew claimant's identification card the defendant "failed to perform a duty enjoined upon it by law" (CPLR 7803 [1]), or, if defendant made an affirmative determination to not reissue claimant's identification card, whether its "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). This claim for lost income simply cannot be decided without reviewing the omission or determination by the State Division of Licensing Services that has left claimant without his security guard identification card (see Matter of Salahuddin v Connell, 53 AD3d 898, 900 [3d Dept 2008]), and thus, this claim is "a quintessential example of a dispute governed under CPLR article 78" (Madura, 12 AD3d at 761).

To the extent that defendant argues that this Court lacks jurisdiction because "[a]ny money damages sought by the Claimant appear to be incidental to the lack of a valid security guard identification card" (Krenrich Affirmation, 5), whether the consequential damages in the nature of lost income is "incidental" would have been an inquiry for Supreme Court if claimant had obtained a judgment in his favor on an article 78 petition (see CPLR 7806 ["Any restitution or damages granted to the petitioner must be incident to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity"]; cf. Matter of Gross, 72 NY2d at 237 [noting that CPLR 7806 was enacted "for the sole purpose of immunizing the State from paying consequential damages in cases where a State agency improperly denied, revoked or suspended a petitioner's license"]). In other words, the consequential damages that claimant seeks for the alleged improper failure to send claimant his security guard identification card are not compensable.

Inasmuch as the claim requires review of an agency's alleged inaction and/or wrongful determination, the matter should have been reviewed in Supreme Court in an article 78 petition, and this claim must be dismissed for this Court's lack of subject matter jurisdiction. Accordingly, It is

ORDERED, that defendant's motion number M-82727 is GRANTED, and claim number 121813 is DISMISSED.

March 11, 2013

Albany, New York


Judge of the Court of Claims

Papers considered:

(1) Claim Number 121813, filed October 3, 2012;

(2) Notice of Motion, dated December 12, 2012;

(3) Affirmation of Michael T. Krenrich, AAG, in Support of Motion to Dismiss, dated

December 12, 2012, with Exhibit A;

(4) Claimant's Affidavit in Opposition of Defendant's Motion to Dismiss Claim, sworn to

January 8, 2013, with Exhibit A.