Panella v State of New York

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Panella v State of New York 2018 NY Slip Op 33591(U) September 5, 2018 Supreme Court, Oneida County Docket Number: EFCA2018-000197 Judge: Norman W. Seiter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 STATE OF NEW YORK, SUPREME COURT ONEIDA COUNTY Joseph P. Panella, Plaintiff, ORDER AND JUDGMENT -v- Index No.: EFCA2018-000197 The State of New York, The Office of Court Administration of the State ofNew York, The Honorable Lawrence Marks, In his Professional Capacity only, As Chief Administrative Judge of the State ofNew York, RJI No.: 32-18-0269 Defendants. The Plaintiff, Joseph P. Panella, having commenced this action on January 19, 2018, bye-filing a Summons and Complaint with the Oneida County Clerk and, thereafter, having served a copy of the Summons and Complaint on the Office of the Attorney General and the Defendants, the State of New York, the Office of Court Administration of the State of New York, the Honorable Lawrence Marks, in his professional capacity only, as Chief Administrative Judge of the State of New York; and The Defendants having made a pre-Answer Motion to Dismiss the Complaint, dated April 5, 2018, bye-filing and serving a Notice of Motion and Affirmation of Sean B. Virkler, Esq. in Support of the Motion, along with a Memorandwn of Law in Support of the Motion dated April 5, 2018, by Sean Virkler, Esq., on the grounds that the court does not have subject matter jurisdiction over the issues presented; and The Plaintiff having submitted an Affidavit by Joseph Panella, dated June 20, 2018, in opposition to the motion and an Affidavit of Stephanie A. Palmer, Esq. in opposition to the motion dated June 20, 2018; and Filed In Oneida County Clerks Office 7 AM 9/5/2018 1 of 12:00:00 Index# EFCA2018-000197 [*FILED: 2] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 The Defendants having e-filed and served a Reply Affirmation by Sean B. Virkler, Esq. dated June 26, 2018, in further support of their motion; and The motion to dismiss having come before the Court on June 28, 2018, on submission; and The Court having issued a written Decision on the motion on July 26, 2018, a copy of which is attached, dismissing the action on the grounds that the court lacks jurisdiction over the defendants, as the issues presented are against the defendants for decisions made in their governmental capacity, resulting in plaintiff's request for monetary damages, which falls under the jurisdiction of the New York State Court of Claims, and as further set forth in the attached Decision on Motion; Now, it is hereby, ORDERED, that the motion to dismiss is granted and the case is dismissed in its entirety. September Dated: Xilplt\ S , 2018 Oswego, New York ENTER ,Y. W. SEITER, JR. ustice of the Supreme Court 2 of 7 [*FILED: 3] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM . 26 NYSCEF DOC. NO. 36 INDEX NO. EFCA2018-000197 RECEIVED 018 RECEIVED NYSCEF: NYSCEF: 07/26/ 09/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONEIDA -------------------·~~~-----------·--------------------------------------~ JOSEPHP. PANELLA, Plaintiff vs. DECISION ON MOTION THE STATE OF NEW YORK; THE OFFICE OF COURT ADMINISTRATION OF THE STATE OF NEW YORK; THE HONORABLE LAWRENCE MARKS, In his Professional Capacity only As CHIEF ADMINTSTRATIVE JUDGE OF THE STATE OF NEW YORK, Index No.: RJI No.: EFCA2018-000197 32-18-0269 Defendants Hon. Nomlan W. Seiter, Jr., J.S.C. ----------------------~~·----- The above captioned matter is before this court pursuant to defendants' pre-Answer Motion to Dismiss the Complaint asserting that this court does not have subject matter jurisdiction over the issues presented and, in the alternative, that if this is, in fact, a request for equitable determinations, that same should have been commenced as an Article 78 proceeding. Plaintiffasserts, in response, that this action is properly before this court and that the pending Motion should be in all respects denied. The Motion was made returnable on submission, and the following documents have been considered by this court: NYSCEF Document Number 16 17 18 19 21 22 23 25 Document Description Notice of Motion (Amended) Affidavit or Affinnation in Support Exhibits(s) Memorandum of Law in Support Affidavit or Afiimation in Opposition to Motion Affidavit or Affirmation in Oppostion to Motion Memorandum of Law Affidavit or Affirmation in Reply 3 of 7 [*FILED: 4] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 NYSCEF DOC. INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 RECEIVED NYSCEF: 07/26/ OlB Index No.: EFCA2018-000197 RJI No.: 32-18-0296 Page2 Having reviewed the submissions by counsel on behalf of the parties, this court makes the following decision. The plaintiff in the above-captioned action was formerly the Chief Clerk of the Oneida County Combined Courts, who was initially appointed in 1993 and was thereafter upgraded a number of times and became Chief Clerk IV, a management confidential position. paygrade JG 32, in 1999. The papers submitted outline the income compression that occurred in 2008. and the facts and circumstances of the plaintiff's retirement with an incentive in November of 2010. The plaintiffasserts that he is entitled to recomputation of his pension in light of the portion of his salaiy that was deferred from 2008 unti) the date of his retirement, and that he is entitled to approximately $39,000.00 in withheld wages and compensation for lost fringe benefits. Plaintiff in his Complaint further requests a directive that the defendant make payment to him for the amounts alleged due, his counsel fees, and expenses of litigation including costs. Defendants have now moved, by special appearance, to dismiss the Complaint pursuant to CPLR 3211 (a)(2) and (8), asserting that this court lacks personal and subject matter jurisdiction and that the issues presented may only be determined in the Court of Claims. In the alternative, defendants assert that plaintiff's request for the equitable relief without the commencement of an Article 78 proceeding, necessitates dismissal. Decision The Court of Claims has limited jurisdiction to hear actions against the State itse1f, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State-i.e., where the State is the real party in interest. Generally, actions against State officers acting in their official capacity in the exercise of governmental functions are deemed to be, in essence, claims against the State and, therefore, suable only in the . . 4 of 7 [*FILED: 5] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 . 26 INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 RECEIVED NYSCEF: 07/26/ 018 Index No.; EFCA2018-000197 RJI No.: 32-18-0296 Page 3 Court of Claims [citations omitted]. Not every suit against an officer of the State, however, is a suit against the State. {citations omitted] A suit against a State officer wi11 be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State. Thus [for example], an action for damages against the Director of the State Lottery Division, stemming from a disputed termination of claimant's license agreement, was, in actuality, an action against the State; it could, therefore, be brought only in the Court of Claims and Supreme Court had no jurisdiction ... Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest--even though it could be held secondarily liable for the tortious acts under respondeat superior. Thus, an action arising out of a traffic accident against a hospital operating a State ambulance service ~as not one against the State as real party in interest. Morell v. Balasubraroanian, 70 N.Y.2d 297, 300--01, (1987). The matter now before this court involves allegations of a breach of contract between the plaintiff and the State of New York, the Office of Court Administration, and Hon. Lawrence Marks in his professional capacity alone, whereby the plaintiff seeks monetary damages rather than equitable relief. Johnson vs. Smith, 112 A.D.2d 50 (4'" Dept. 1985); Barrier Motor Fuels. Inc. vs. Boardman, 256 A.D.2d 405 (2~d Dept. 1998); Gonzalez vs. Coughlin, 198 A.D.2d 683 (3'd Dept. 1993). The plaintiff cites Loehr vs. New York State Unified Court System, 150 A.D.3d 716 (2"d Dept 2017), Iv. denied 30 NY3d 903 (2017), wherein similar relief to the case now before this court was sought, and asserts that same was properly determined in Supreme Court. However, in the Loehr matter, the defendant never objected, moved to dismiss or asserted that the case would only have been properly commenced in the Court of Claims, and thus this court finds that 5 of 7 [*FILED: 6] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 RECEIVED NYSCEF: 07/26/ 018 Index No.: EFCA2018-000197 RJI No.: 32-18-0296 Page4 Loehr is not binding on the case now before this Justice. Loehr was a hybrid action seeking CPLR Article 78 relief, whereas here, no such proceeding was filed. Were this court to determine the relief requested to be equitable in nature, a proceeding pursuant to CPLR Article 78 would be necessary for this court to address the propriety of the defendants' decision to withhold salary increases under Chapter 276(7)(a) of the Laws of 2008. The determination was made as to salary increases on or about January 16, 2013, and the time to challenge the agency determination by the filing of a proceeding under Article 78 has Jong since run. In any case, this court finds that the issues presented are clearly asserted against the defendants for decisions made in a governmental capacity, resulting in plaintiff's request for monetary damages, which such issues fall within the putview and jurisdiction of the New York State Court of Claims. Conclusion In light of the foregoing, this court will grant the pending Motion and the Complaint shall be dismissed in its entirety. Counsel for the defendants is to submit a proposed Order and Judgment granting the Motion and dismissing the overall action within thirty (30) days hereof, on notice to opposing counsel. Dated: July 26, 2018 Oswego, New York 6 of 7 [*FILED: 7] ONEIDA COUNTY CLERK 09/05/2018 11:58 AM NYSCEF DOC. NO. 36 . 26 INDEX NO. EFCA2018-000197 RECEIVED NYSCEF: 09/05/2018 RECEIVED NYSCEF: 07/26/ 018 lndex No.: EFCA2018-000197 RJI No.: 32-18-0296 Page 5 APPEARANCES: ROBERT F. JULIAN, ESQ. ROBERT F. JULIAN, P.C. Attorneys for the Plaintiff 203 7 Genesee Street Utica, New York 13501 Telephone: 315-797-5610 SEAN B. VIRKLER, ASST. ATTORNEY GENERAL Of Counsel to ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK Attorneys for the Defendant 207 Genesee Street Utica, New York 13501 Telephone: 31 S-864-2000 7 of 7

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