Opinion
# 2016-045-011 Claim No. 127021 Motion No. M-87981
04-29-2016
KEVIN SCHOLER v. THE STATE OF NEW YORK
Kevin Scholer, Pro Se Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim brought against the New York State Housing Trust Fund Corporation and New York Rising. Claim concerned reimbursement amounts for damages due to storms. Claim dismissed, no jurisdiction over public benefits corporation, improper service by priority mail and essentially a review of adverse administrative decision, Article 78.
Case information
| UID: | 2016-045-011 |
| Claimant(s): | KEVIN SCHOLER |
| Claimant short name: | SCHOLER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127021 |
| Motion number(s): | M-87981 |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Kevin Scholer, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation with annexed Exhibit A and the filed Claim.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (2), (7) and (8) and Court of Claims Act §§ 8, 9, 10 and 11 seeking an order dismissing the claim. Claimant, Kevin Scholer, a pro se litigant, did not submit papers in opposition to this motion.
Claimant alleged in his claim that in late 2012 he and his mother, Janice Scholer, the co-owner of his house, applied to New York Rising, a program of the New York State Housing Trust Fund Corporation (HTFC), for relief from damages they suffered to their home as a result of Hurricane Irene, Tropical Storm Lee and Hurricane Sandy. Claimant explained that they applied for $7,400 in reimbursement for repairs to their home and on December 12, 2013 were awarded $7,268.53. Claimant also alleges that he was awarded $16,992.35 for further repairs. The first 50% of the award was made available on February 6, 2014 upon claimant and Ms. Scholer choosing a contractor. The balance was to be paid upon completion of the repairs. Claimant sets forth that this agreement constituted a contract. Claimant also alleges that their case worker informed them that expenses for building permits and design professionals were separate from the repair award and would be reimbursed once proof of payment was submitted. Construction was completed in late April 2013, and on the direction of their case worker, an inspection was scheduled so that the second payment could be received.
Claimant sets forth that after submitting all necessary documentation, he was informed that New York Rising had made an error and that he would only be paid an amount of $748.83. Claimant argues that the explanations for the denial of full reimbursement has varied over the proceeding eighteen months and that New York Rising violated contract law by not paying claimant the amount previously set forth. Claimant contends that he is owed $10,531.17 which is the second 50% payment as well as an additional $2,035 dollars in permit and design fees.
Defendant initially seeks dismissal of the claim based upon claimant's failure to properly serve the claim either by personal service or by certified mail, return receipt requested as required by Court of Claims Act § 11 (a) (i). Defendant sets forth that it was served with the claim by Priority Mail 2-day service on November 16, 2015. Defendant argues, that as a result, the Court lacks jurisdiction over the claim. In support, defendant submitted a photocopy of the United States Postal Service's Priority Mail envelope that the claim was served in (see Def Exh A).
Court of Claims Act § 11 (a) provides that a copy of the claim ". . . shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and, therefore, must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act § 11 was not met as the claim was served by priority mail. Claimant's "substituted manner of service - priority mail- did not strictly comply with the statutory requirements" (Miranda v State of New York, 113 AD3d 943 [3d Dept 2004]). As the use of priority mail to serve the claim upon the Attorney General is insufficient to acquire jurisdiction over the State, the Court is deprived of jurisdiction over this claim.
Even if the claim had been properly served, defendant also argues that the claim should be dismissed because it was not timely served and filed pursuant to Court of Claims Act § 10 (4). Court of Claims Act § 10 (4) provides that: "[a] claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual."
Claimant alleges in the claim that he and Ms. Scholer have been pursuing New York Rising to correct their mistake and pay the full amount of the funds for eighteen months prior to filing the claim. Defendant sets forth that to the extent a breach of contract claim exists, it accrued some eighteen months prior to the filing of the Claim and is therefore untimely.
Claimant posits that because he is currently disabled due to end-stage renal disease, he is entitled to the benefit of tolling pursuant to Court of Claims Act § 10 (5) which permits the filing and service of a claim within two years after a "legal disability" is removed. However, claimant's physical disability does not qualify as a legal disability under the statute.
The failure of the claim to contain a date of accrual deprives the Court of the ability to adequately address defendant's contentions concerning the timeliness of the claim. However, it should be noted that taking as true the allegation in the claim that claimant has been attempting reimbursement for eighteen months, in conjunction with claimant's attempt to implicate Court of Claims Act § 10 (5), it is logical to conclude that the claim was filed in contravention of the time requirements prescribed by Court of Claims Act § 10 (4). Thus, as the requirements of Court of Claims Act § 10 (4) are also jurisdictional in nature, the claim would have also had to be dismissed on this ground if the Court had reached this issue (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; Lyles v State of New York, 3 NY3d 396 [2004]; Alston v State of New York, 97 NY2d 159 [2001]).
Additionally, defendant argues that New York Rising, a subsidiary of HTFC, is not subject to the jurisdiction of the Court of Claims.
The HTFC is a public benefits corporation created by statute (see 9 NYCRR § 1900.2) and New York Rising is a subsidiary of that entity. The statute is silent with regard to the jurisdiction of the Court of Claims over the HTFC. However, "[w]here the State Legislature has decided to confer on the Court of Claims jurisdiction over public authorities, it has done so specifically by statute; the absence of such a provision in the enabling legislation indicates that jurisdiction lies with courts of general jurisdiction" (Gembala v Audobon Assn., 97 AD2d 345 [3d Dept 1983]; see Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885 [3d Dept 2003]). Thus, the Court of Claims, a court of limited jurisdiction wherein claims are primarily brought against the State of New York and certain public authorities, does not have jurisdiction to hear claims brought against HTFC or its subsidiary, New York Rising (id.; Wendel v NYS Housing Trust Fund Corp., UID 2015-040-020 [Ct Cl, McCarthy, J., April 27, 2015]; ProSource Tech., LLC v Housing Trust Fund Corp., 49 Misc3d 1205(A) [Sup Ct, Albany County 2015]; see also CCA § 9).
Lastly, defendant argues that the Court lacks jurisdiction over the claim since it essentially seeks review of an administrative decision.
Claimant's allegations are premised on the determinations by New York Rising, a subsidiary of HTFC, to reimburse claimant and Ms. Scholer for only a portion of their expenses incurred due to the aforementioned storms. When an action concerns the review of an adverse agency determination or failure of a body to perform a duty enjoined upon it by law, an Article 78 proceeding in Supreme Court is the proper forum (Matter of Gross v Perales, 72 NY2d 231 [1988]; Feuer v State of New York, 101 AD3d 1550 [3d Dept 2012]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011]; McGuinness v New York State Workers' Compensation Bd., 41 AD3d 557 [2d Dept 2007]; see Matter of Amodeo v Town Bd. of Town of Marlborough, 249 AD2d 882 [3d Dept 1998]). Thus, the Court is constrained to find that it does not have jurisdiction over this matter.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is hereby dismissed.
April 29, 2016
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims