Sinkler v Clue

[*1] Sinkler v Clue 2009 NY Slip Op 50879(U) [23 Misc 3d 1121(A)] Decided on May 4, 2009 Civil Court Of The City Of New York, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2009
Civil Court of the City of New York, Kings County

Gladstone Sinkler and Robert Sinkler, Plaintiffs,

against

Cecile Denise Clue and New York City Child Support Enforcement Unit, Defendants.



109081/08



Plaintiffs' attorney:

Eddie Shrem, Esq.,

917.589.0519

Defendant NYC's attorney:

Elizabeth Haynes of the Corporation Counsel's Office

212.331.5940

Defendant Cecile D. Clue, self-represented

Genine D. Edwards, J.

Plaintiffs commenced this action to recover $24,998.05 seized from a HSBC bank account as well as damages for conversion and negligence.Defendant New York City Child Support Enforcement Unitmoves to dismiss the action.

Pursuant to a hearing held in Kings County Family Court, a Final Order of Support, dated March 10, 2005, obligated plaintiff Robert Sinkler to pay defendant Cecile Denise Clue child support. Plaintiff Robert Sinkler's objections/modifications to this Order were denied. After plaintiff Robert Sinkler failed to make payment for approximately one year, defendant New York City Child Support Enforcement Unit began proceedings to enforce the Order thereby restraining plaintiff Robert Sinkler's HSBC bank account. Plaintiff submitted a "mistake of fact" in response to the restraining notice. Defendant New York City Child Support Enforcement Unit denied plaintiff Robert Sinkler's challenge to the restraint.

In August of 2007, defendant New York City Child Support Enforcement Unit seized the funds in the HSBC account and remitted the entire amount to defendant Cecile Denise Clue. Plaintiff Robert Sinkler's Order to Show to Vacate was denied. Thereafter, in September 2008, this action was commenced.

After oral argument and due deliberation of the facts and caselaw, this Court finds that it is without jurisdiction to adjudicate this matter. Although the plaintiffs couch this action as one in negligence and conversion, it is pellucidly clear that it falls within the confines of an Article 78 proceeding. Matter of Panaro, 250 AD2d 616, 673 NYS2d 155 (2nd Dept. 1998); Pinnacle bus Service, Inc. v. State of New York, 19 Misc 3d 998, 856 NYS2d 835 (Court of Claims 2008). Indeed, the plaintiffs contend, via counsel, that "This seizure was an arbitrary and capricious act performed by the Defendant. ..." Essentially, the plaintiffs seek this Court to review whether a determination made by a municipal agency, [*2]to wit, the New York City Child Support Enforcement Unit, was properly rendered. Such a review is beyond the jurisdiction of this Court.

The plaintiffs properly assert this Court's ability to convert this action to an Article 78 proceeding, however the expiration of the statute of limitations for that proceeding bars this recourse. Allied Chemical, an Operating Unit of Allied Corp. v. Niagara Mohawk Power Corp., 72 NY2d 271, 532 NYS2d 230 (1988); Starburst Realty Corp. v. City of New York, 125 AD2d 148, 512 NYS2d 60 (1st Dept. 1987).

Accordingly, defendant's motion is granted

This constitutes the decision and order of this Court.

Dated: May 4, 2009________________________

Genine D. Edwards

Judge of Civil Court