Feuer v State of New York

Feuer v State of New York 2012 NY Slip Op 09129 Decided on December 27, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 27, 2012
514828

[*1]BETSY FEUER, Appellant,

v

STATE OF NEW YORK, Respondent.

Calendar Date: November 19, 2012
Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.


Grogan & Souto, PC, Goshen (Edward P. Souto of
counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany
(William E. Storrs of counsel), for respondent.

MEMORANDUM AND ORDER


Kavanagh, J.

Appeal from an order of the Court of Claims (Schaewe, J.), entered March 30, 2012, which denied claimant's application pursuant to Court of Claims Act § 10 (6) for permission to file a late notice of claim.

Prior to retiring in June 2009, claimant, a teacher and a tier 4 member of the New York State Teachers' Retirement System, met with Chris Drouin, her financial advisor, and Colleen Laven, an information representative employed by the Retirement System, for a preretirement consultation. While the particulars of that meeting are subject to some dispute, all agree that claimant submitted an application for retirement effective June 30, 2009. On that application, claimant selected the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis added), and designated her niece and nephew as her beneficiaries. As relevant here, the retirement application detailed another option available to claimant entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do not designate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments [*2]will cease at your death."[FN1] In addition, the application stated that, in the event the applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" — or in claimant's case, no later than July 30, 2009.

After submitting this application, claimant received a letter from the Retirement System dated March 23, 2010, which summarized her retirement benefits and established her monthly pension payment. Later, more then 30 days after the effective date of her retirement, claimant notified the Retirement System that she wanted to change her retirement selection to the Maximum option. After the Retirement System denied her request, claimant brought an application seeking permission to file a late notice of claim [FN2]. The Court of Claims denied her request because claimant, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. This appeal by claimant ensued.

We affirm. The Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief[, although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases" (City of New York v State of New York, 46 AD3d 1168, 1169 [2007], lv denied 10 NY3d 705 [2008] [internal quotation marks and citation omitted]). In that regard, it must first be determined if "the essential nature of the claim is to recover money" (Matter of Gross v Perales, 72 NY2d 231, 236 [1988]; see City of New York v State of New York, 46 AD3d at 1168). If the claim necessarily "require[s] review of an administrative agency's determination," the Court of Claims lacks subject matter jurisdiction (City of New York v State of New York, 46 AD3d at 1168; see Chevron U.S.A. Inc. v State of New York, 86 AD3d 820, 820 [2011]).

Here, while the relief that claimant seeks is couched in money damages, her application, in reality, requires the review of an administrative agency's determination. In that regard, we note that the money damages that claimant seeks are calculated by using as a base figure what she would have received as her pension benefit had she selected the "Maximum" option. Since this claim in essence seeks to review and reverse an administrative determination made by the Retirement System, the Court of Claims lacks subject matter jurisdiction and claimant's motion for leave to file a late notice of claim was properly denied (see Chevron U.S.A. Inc. v State of New York, 86 AD3d at 821; see e.g. Matter of Lewandowski v New York State & Local Police & Fire Retirement Sys., 69 AD3d 1027 [2010]; Matter of Smith v New York State & Local [*3]Employees' Retirement Sys., 167 AD2d 644 [1990]).[FN3]

In light of this conclusion, it is unnecessary to address claimant's remaining contentions.

Peters, P.J., Spain, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs. Footnotes

Footnote 1:Although claimant admits selecting the "Largest Lump Sum" option, she claims that she did so based on Laven's advice, even though she is unmarried, childless and her niece and nephew have been amply provided for by their parents.

Footnote 2:Claimant also sued Laven in Supreme Court in Orange County, claiming that Laven was negligent in the representations that she made regarding claimant's retirement options. This action was dismissed because it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

Footnote 3:If the relief that claimant seeks were granted, she would receive a windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.