| Zutt v State of New York |
| 2008 NY Slip Op 04081 [50 AD3d 1131] |
| April 29, 2008 |
| Appellate Division, Second Department |
| William A. Zutt et al., Appellants, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany, N.Y. (Peter H. Schiff and Michael S. Buskusof counsel), for respondent.
In an action, inter alia, for permanent injunctive relief to abate a private nuisance, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Putnam County (O'Rourke, J.), dated January 31, 2007, as granted that branch of the defendant'smotion which was pursuant to CPLR 3211 (a) (2) to dismiss the first cause of action for lack ofsubject matter jurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (2) to dismiss the firstcause of action is denied.
The plaintiffs own property in Garrison, located between New York State Route 9D and theHudson River. The plaintiffs' property is situated downhill from Route 9D, a highway owned bythe defendant State of New York. The State collected stormwater runoff from the highway in aseries of catch basins and pipes and discharged it into a culvert. From there, the stormwaterflowed into a ditch which runs through the plaintiffs' property. On June 17, 2001 the plaintiffs'property was damaged when stormwater from the highway overflowed the banks of the ditch.
The plaintiffs, in their capacity as claimants, filed a claim in the Court of Claims against theState, asserting causes of action sounding in trespass and nuisance. The Court of Claims foundthe State liable. Prior to the entry of a final judgment in the Court of Claims awarding damages,the [*2]plaintiffs commenced the instant action in the SupremeCourt, Putnam County, seeking, in the first cause of action, to enjoin the State from drainingstormwater through the ditch on their property and, in the second cause of action, to recoverdamages for inverse condemnation. The Supreme Court dismissed the complaint for lack ofsubject matter jurisdiction.
The Court of Claims does not have jurisdiction over strictly equitable claims against the Stateor its instrumentalities (see Cass v State of New York, 58 NY2d 460 [1983]; Matterof Gebman v Pataki, 256 AD2d 854 [1998], cert denied 528 US 1005 [1999]).Further, "although claims that are primarily against the State for damages must be brought in theCourt of Claims, the Supreme Court may consider a claim for injunctive relief against the Stateas long as the claim is not primarily one for damages" (Cavaioli v Board of Trustees of StateUniv. of N.Y., 116 AD2d 689, 689 [1986] [citations omitted]). The relevant question iswhether the essential nature of the claim is the recovery of damages (see Matter of Gross vPerales, 72 NY2d 231 [1988]). Here, the plaintiffs' first cause of action is clearly one forinjunctive relief, and not for damages. Accordingly, the Supreme Court should not have grantedthat branch of the defendant's motion which was to dismiss the first cause of action (seeCavaioli v Board of Trustees of State Univ. of N.Y., 116 AD2d 689 [1986]; cf. Matter ofAlbany Hous. Auth. v Hennessy, 74 AD2d 710, 711 [1980]). Mastro, J.P., Ritter, Carni andEng, JJ., concur.