Berrian v State of New York

Berrian v State of New York 2007 NY Slip Op 08323 [45 AD3d 995] November 8, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Lenard Berrian, Appellant, v State of New York, Respondent.

—[*1] Lenard Berrian, Elmira, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), for respondent.

Lahtinen, J. Appeal from an order of the Court of Claims (Collins, J.), entered August 25, 2006, which, sua sponte, dismissed the claim for lack of subject matter jurisdiction.

Alleging that a CPLR article 78 proceeding challenging a prison disciplinary determination became moot when Supreme Court failed to sign the order to show cause, claimant requested a refund of the reduced filing fee he paid. After Supreme Court and the Greene County Clerk denied his request for a refund, claimant commenced this claim for the return of the fee, and now appeals from its dismissal.

As the Court of Claims aptly noted, the deliberate decisions of Supreme Court and the Greene County Clerk complained of by claimant are subject to judicial review in a proceeding in the nature of mandamus to compel and because any monetary recovery would be incidental to the mandamus proceeding, dismissal of this claim for lack of subject matter jurisdiction was appropriate (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]).

Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.