Motion to dismiss Claim for lack of subject matter jurisdiction granted; Claim requires review of several administrative determinations, including the decision of the Office of Parks, Recreation and Historic Preservation to prohibit overnight stays at a State marina and to revoke Claimant's right to use a wet slip.
|Claimant short name:||SAMODOVITZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court amends the caption sua sponte to reflect the State of New York as the only proper Defendant.|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Arthur Samodovitz, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Heather K. Zimmerman, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2021|
|See also (multicaptioned case)|
Pro se Claimant Arthur Samodovitz filed this Claim on May 28, 2020. Claimant contends that on February 7, 2020, he entered into a "lease" with the New York State Office of Parks, Recreation, and Historic Preservation (Parks Department) for a boat (wet) slip at Allan H. Treman State Marine Park in Ithaca, New York for a term beginning May 1, 2020 and ending the third week of October 2020 (Affirmation of Heather K. Zimmerman, Esq., Assistant Attorney General, Ex B [Amended Claim] ¶ 3). In addition to recreational use, Claimant sought to utilize the wet slip for overnight stays on his boat (see id. ¶ 1).
On or about April 24, 2020, Claimant received a letter from the manager of the State Park advising that "[o]vernight stays in the marina basin are not allowed, no exceptions" (id. ¶ 6). In response, Claimant quarreled with the Parks Department regarding the agency's authority to prohibit overnight stays at the marina. Claimant posited that he had a "lease" to the wet slip which could not be unilaterally altered by the Parks Department (see id. ¶¶ 7-8). The Parks Department countered that it had authority to prohibit overnight stays at the marina pursuant to Executive Order 202.10 issued by Governor Cuomo. Additionally, the Parks Department contended Claimant did not have a "lease," but merely possessed a permit to utilize the wet slip that could be revoked at any time (see id.).
On or about May 14, 2020, Claimant received a letter from the Parks Department via certified mail and email revoking and terminating his "West [sic] Slip Permit # 9745 for slip # 168 at Allan H. Treman State Marine Park under Condition 8" of the application form (Amended Claim, Ex C). Condition 8 of the application form states "[a]ll park rules and regulations as well as applicable State and Federal rules and regulations will be observed. When rules and regulations relating to public safety have been violated, the region reserves the right to . . . terminate without prior notice or refund, any permit issued" (Amended Claim, Ex B [Marina Seasonal Slip Application] ¶ 8). This Claim ensued.
Claimant filed an Amended Claim as of right on June 11, 2020. The Amended Claim (1) challenges authority of the Parks Department to prohibit overnight stays at the marina, (2) alleges that Defendant breached the "lease" allowing Claimant to use the wet slip, (3) asserts a cause of action under Real Property Actions and Proceedings Law (RPAPL) § 853, (4) avers Defendant violated the Freedom of Information Law (FOIL), (5) alleges Defendant's breach of the "lease" violated his constitutional rights, and (6) seeks punitive damages. Defendant filed a Verified Answer to the Amended Claim on September 24, 2020 (see Affirmation of Heather K. Zimmerman, Esq., Assistant Attorney General, Ex C [Verified Answer]).
Defendant now moves to dismiss the Amended Claim on the grounds that the Court lacks subject matter jurisdiction over the Amended Claim and the Amended Claim otherwise fails to state a cause of action upon which relief can be granted. Specifically, Defendant argues that the Amended Claim seeks review of several administrative determinations, including the Parks Department's decisions to prohibit overnight stays at the marina and to terminate Claimant's right to use the wet slip, which must be pursued in a CPLR article 78 proceeding in Supreme Court. Claimant opposes the motion.
The Court of Claims is a court of limited jurisdiction and does not possess the jurisdiction to grant strictly equitable relief (see Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 ). The threshold issue in determining whether the Court of Claims has subject matter jurisdiction over a claim is "'[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim'" (id., quoting Matter of Gross v Perales, 72 NY2d 231, 236 , rearg denied 72 NY2d 1042 ). "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" (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks and citation omitted], lv denied 12 NY3d 712 ; Feuer v State of New York, 101 AD3d 1550, 1551 [3d Dept 2012]). Indeed, "an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims" (Buonanotte, 60 AD3d at 1144; see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 ; Matter of Gross, 72 NY2d at 236).
"If the award of a money judgment must be preceded by overturning and annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). Thus, where review of an administrative determination is necessary to the determination of claimant's breach of contract cause of action, the Court lacks subject matter jurisdiction over the Claim (see Whatley v City Univ. of N.Y., UID No. 2017-053-527 [Ct Cl, Sampson, J., June 12, 2017]; cf. Grant St. Constr., Inc. v State of New York, UID No. 2017-015-210 [Ct Cl, Collins, J., Mar. 17, 2017]).
Although Claimant has framed the Claim so as to recover damages from an alleged breach of contract, it is clear this Court would be required to review the administrative actions and determinations of Parks Department in restricting overnight use of wet slips at the marina and revoking Claimant's right to use the wet slip. As such, any monetary award by this Court would be incidental to a review of the administrative actions and determinations, which are clearly beyond the subject matter jurisdiction of the Court of Claims (see Pratow Corp. v State of New York, 148 AD3d 1065, 1066 [2d Dept 2017] ["because adjudication of the claim requires review of the administrative determination . . . to remove the claimant from the tow list, the Court of Claims properly dismissed the claim on the ground that it lacked subject matter jurisdiction to entertain it"]; Whatley, UID No. 2017-053-527 [holding the Court of Claims lacks subject matter jurisdiction over a claim which seeks to have the court review the administrative determination of CUNY to terminate the claimant's employment contract]). Consequently, Claimant's challenges to the administrative actions and determinations of the Parks Department in restricting overnight use of wet slips at the marina and revoking Claimant's right to use the wet slip must be brought in Supreme Court pursuant to a CPLR article 78 proceeding (see CPLR 7803; CPLR 7804).
Similarly, the Court lacks subject matter jurisdiction over Claimant's request for treble damages under RPAPL 853. RPAPL 853 permits the recovery of treble damages by "a person [who] is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means" (emphasis added). Thus, to award Claimant damages under this provision, the Court would necessarily have to review the legality of the administrative actions and determinations of the Parks Department, which is beyond its jurisdiction (see generally Carver v State of New York, UID No. 2009-015-160 [Ct Cl, Collins, J., May 4, 2009] [holding the Court of Claims lacks jurisdiction over challenges to the legality of administrative determinations, which must be pursued in a CPLR article 78 proceeding]), affd 79 AD3d 1393 [3d Dept 2010], lv denied 17 NY3d 707 ).
This Court also lacks subject matter jurisdiction over Claimant's cause of action premised upon Defendant's alleged violations of FOIL, which must be pursued in CPLR article 78 proceeding (see McCain v State of New York, UID No. 2012-049-010 [Ct Cl, Weinstein, J., Sept. 28, 2012]; Anthony v State of New York, UID No. 2011-039-221 [Ct Cl, Ferreira, J., Mar. 16, 2011]; see also Matter of Burtis v New York City Police Dept., 294 AD2d 315, 315 [1st Dept 2002], lv denied 98 NY2d 612  ["money damages are not available for an agency's failure to comply with a FOIL request, relief being limited to an administrative appeal and a CPLR article 78 proceeding"]).
Additionally, it is well settled that this Court lacks subject matter jurisdiction over a claim under the Federal Constitution which must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 ; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]). Consequently, to the extent the Amended Claim asserts causes of action under the United State Constitution, it must be dismissed.
To the extent Claimant purports to allege a claim under the New York State Constitution (see Amended Claim ¶ 19; Claimant's Response to Defendant's Motion to Dismiss Complaint/Claim, at 12), a claim under the New York State Constitution will not lie "where the claimant has an adequate remedy in an alternative forum" (Shelton, 61 AD3d at 1150; see Inmate M. v State of New York, 164 AD3d 1629, 1630 [4th Dept 2018], lv denied 33 NY3d 903 ). As stated above, Claimant has an alternative remedy challenging the Parks Department's actions in the form of a CPLR article 78 proceeding in Supreme Court (see LM Bus. Assoc., Inc. v State of New York, 124 AD3d 1215, 1219 [4th Dept 2015], lv denied 25 NY3d 905 ; Shelton, 61 AD3d at 1150; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]; Boyd v State of New York, UID No. 2017-050-046 [Ct Cl, Lynch, J., Sept. 29, 2017]). Consequently, a state constitutional claim does not lie.
With respect to Claimant's request for punitive damages, the Court of Appeals has held "that the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its political subdivisions" (Sharpata v Town of Islip, 56 NY2d 332, 334 ). To the extent the Amended Claim seeks punitive damages, it must be dismissed.
In sum, the Court lacks subject matter jurisdiction over the causes of action alleged and the relief sought in the Amended Claim.
Accordingly, it is hereby
ORDERED that Defendant's Motion No. M-96273 is GRANTED and Claim No. 134830 is DISMISSED in its entirety.
January 8, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following in deciding this motion:
(1) Notice of Motion, dated December 3, 2020.
(2) Affirmation of Heather K. Zimmerman, Esq., Assistant Attorney General, dated December 3, 2020, with attachments.
(3) Claimant's Response to Defendant's Motion to Dismiss Complaint/Claim, sworn to on December 11, 2020.
(4) Reply Affirmation of Heather K. Zimmerman, Esq., Assistant Attorney General, dated January 4, 2021 with attachments.
(5) Claimant's Reply with Affirmation to Defendant's Reply Affirmation sworn to on January 6, 2021.
(6) Claimant's Request to File a Supplemental Reply to Defendant's Reply Affirmation dated January 4, 2021 and Claimant's Supplemental Reply to Defendant's Reply Affirmation Claim 134830, sworn to January 8, 2021.