| City of New York v State of New York |
| 2007 NY Slip Op 10002 [46 AD3d 1168] |
| December 20, 2007 |
| Appellate Division, Third Department |
| City of New York et al., Appellants, v State of New York,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondents.
Mugglin, J. Appeals (1) from an order of the Court of Claims (Collins, J.), entered July 19,2006, which, among other things, granted defendant's motion to dismiss the claim, and (2) froman order of said court, entered March 5, 2007, which, upon reargument, adhered to its priordecision, among other things, denying claimants' motion pursuant to Court of Claims Act §10 (6) for permission to file a late claim.
Disabled students residing in Office of Mental Retardation and Developmental Disabilities(hereinafter OMRDD) facilities attend school in the districts where the facilities are located(hereinafter host districts). Under the Education Law, host districts may seek reimbursementfrom the Department of Education for the expenses incurred in educating children placed in theirdistricts (see Education Law §§ 3202, 3604). Claimants unsuccessfullysought reimbursement for expenses related to providing educational services to 156 such studentsfor the 2000-2001, 2001-2002 and 2002-2003 school years. They filed this claim asserting fourcauses of action, namely, a statutory cause of action for damages under Education Law §3202 (5) (b) and (d) (6); that defendant was negligent in failing to notify claimants that childrenhad been placed in their schools as required by statute, thus preventing claimants from seekingreimbursement; that a contract should be implied to reimburse claimants for expenses caused bythe requirement to educate children placed in their districts; and that defendant would be unjustly[*2]enriched if it was not forced to pay for educational expensesof the children. By preanswer motion, defendant sought dismissal of the claims for lack ofsubject matter jurisdiction, for failure to timely serve a written notice of claim and for failure toverify the claim. The Court of Claims granted defendant's motion to dismiss and deniedclaimants' cross motion to file a late claim. Subsequently, claimants moved to renew and reargueand separately sought leave to file a late claim with an attached new verified claim. Although theCourt of Claims granted reargument, it adhered to its prior decision dismissing the claim andagain denied claimants' motion for leave to file a late claim. Claimants appeal and we affirm.
Two inquiries must be made to determine if the Court of Claims has subject matterjurisdiction. As that court has "no jurisdiction to grant strictly equitable relief" (Psaty vDuryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as theprimary claim seeks to recover money damages in appropriation, contract or tort cases (seeOzanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]),"the threshold question is '[w]hether the essential nature of the claim is to recover money, orwhether the monetary relief is incidental to the primary claim' " (Madura v State of New York, 12 AD3d759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross vPerales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimantcategorizes a claim, is whether the claim would require review of an administrative agency'sdetermination—which the Court of Claims has no subject matter jurisdiction to entertain(see Hoffman v State of New York,42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only inSupreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-FingerLakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]). While this claim is couchedonly in terms that seek recovery of monetary damages, the real challenge is to the Department'sadministrative determinations that these claims were not timely filed and that claimants' requestfor a waiver of the time limitations was also untimely. Thus, the statutory cause of action, theimplied contract cause of action and the unjust enrichment cause of action were all properlydismissed by the Court of Claims for lack of subject matter jurisdiction as they are directlydependent upon the Department's determination that the claims are not timely (seeEducation Law § 3604 [5] [a]) and that the waiver request was also untimely (seeEducation Law § 3202 [5] [e]).
The sole remaining cause of action in the claim contends that defendant negligently failed tonotify claimants that children had been placed in their schools as required by Education Law§ 3202 (5). Although the Court of Claims has subject matter jurisdiction of claimsinvolving alleged negligence by defendant in the performance of ministerial duties (seeBoland v State of New York, 218 AD2d 235, 245 [1996]), there must be strict compliancewith the requirements of timely service of a notice of claim and verified claim. Theserequirements, if not met and not waived (see Court of Claims Act § 11 [c]),constitute jurisdictional defects that deprive the Court of Claims of subject matter jurisdiction(see Alston v State of New York, 97 NY2d 159 [2001]). Here, the Court of Claimscorrectly found that claimants did not timely serve a notice of intention or claim and, thus, itlacked subject matter jurisdiction over this cause of action. Moreover, we find no abuse ofdiscretion in the Court of Claims determination to deny claimants' leave to serve a late claim.
With respect to claimants' first application for leave to serve a late claim, the motion papersfailed to include a copy of the proposed claim, did not make a factual showing that the proposedclaim had merit and failed to address the statutory factors set forth in Court of Claims Act§ 10 (6) (see Matter of Donaldson v State of New York, 167 AD2d 805, 806[1990]; Simpson v State of New York, 96 AD2d 646, 646 [1983]). Likewise, the Courtof Claims [*3]correctly denied claimants' second application forleave to file a late claim. Although defendant would not suffer any substantial prejudice as aresult of a late claim since it had notice and an opportunity to investigate the facts thereof,claimants' delay in seeking to file a late claim was not excusable. Claimants admittedly wereaware that they had not been provided any information regarding placement of OMRDD childrenin their schools. The lack of this information, however, did not preclude claimants making timelyapplication for waiver of the time limitation in which to seek reimbursement of the expenseinvolved in the educational services (see Education Law § 3202 [5] [e]). Also,claimants once again failed to make any factual demonstration of merit to the claim. Under thesecircumstances, we cannot say that the Court of Claims abused its discretion in denying claimants'second motion for leave to file a late claim with regard to the ministerial negligence cause ofaction.
Crew III, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the orders are affirmed,without costs.