Opinion
# 2019-044-515 Claim No. 132580 Motion No. M-93567
04-09-2019
KEVIN JOSEPH GABRIEL BRENNAN v. THE STATE OF NEW YORK
KEVIN JOSEPH GABRIEL BRENNAN, pro se HON. LETITIA JAMES, ATTORNEY GENERAL BY: Douglas R. Kemp, Assistant Attorney General
Synopsis
Defendant's motion to dismiss for lack of subject matter jurisdiction is granted.
Case information
| UID: | 2019-044-515 |
| Claimant(s): | KEVIN JOSEPH GABRIEL BRENNAN |
| Claimant short name: | BRENNAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132580 |
| Motion number(s): | M-93567 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | KEVIN JOSEPH GABRIEL BRENNAN, pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 9, 2019 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a self-represented litigant, filed this claim to recover for, among other things, the Workers' Compensation Board's (the Board) breach of contract, denial of issue of permanency, and denial of due process. In lieu of answering, defendant State of New York (defendant) moves to dismiss the claim, arguing that this Court lacks subject matter jurisdiction. Claimant opposes the motion.
Before the Court addresses the merits of this motion, some background information is helpful. Claimant was injured on November 1, 1995 while working as a heavy equipment operator for the Village of Johnson City, New York, and a workers' compensation claim for his back injury was established. At some time in 2002, the Board determined "that claimant violated Worker's Compensation Law § 114-a and assessed a penalty of permanent disqualification from wage replacement benefits" (Matter of Brennan v Village of Johnson City, 98 AD3d 1199 [3d Dept 2012], lv dismissed 20 NY3d 998 [2013]). The claim was then expanded in 2010 to include his two hips, but claimant's request to lift the penalty on the basis of the additional injury was denied (Brennan, 98 AD3d at 1199). In September 2018 claimant apparently requested further action to include hemorrhoids as an additional injury in the workers' compensation claim, allegedly caused by opioid usage relating to his back injury. The Board found that it could not take any action as it needed, among other things, medical evidence of permanency. Several pieces of correspondence between claimant and the Board were exchanged with the Board declining to take any further action. Claimant then filed this claim.
It appears that claimant was convicted in October 1999 of filing a false instrument in the first degree in connection with his workers' compensation claim (see People v Brennan, 290 AD2d 574 [3d Dept 2002], lv denied 97 NY2d 751 [2002]).
In his claim, claimant alleges that the Board has incorrectly classified his injuries as temporary and as a result he cannot settle his compensation claim. He also alleges that the classification has affected the manner in which his injuries are treated. In his affidavit in opposition to the motion, claimant argues that this Court has jurisdiction because the Board has refused to hold a hearing to determine his permanent level of disability.
In order "[t]o determine if the Court of Claims has subject matter jurisdiction, the threshold question is [w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Hoffman v State of New York, 42 AD3d 641, 642 [3d Dept 2007][internal quotation marks and citation omitted]). The second inquiry "is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain" (City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]). Although claimant categorizes his claim as a breach of contract and denial of due process and requests $150,000, it is apparent that in order to award such damages, this Court would be required to find that the Board's determination was incorrect. Because litigation of this claim would require review of an administrative agency's determination, the Court of Claim lacks jurisdiction (id.; see also Feuer v State of New York, 101 AD3d 1550, 1551 [3d Dept 2012]; see Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]).
To the extent that claimant is attempting to appeal the determination, defendant aptly notes that the Appellate Division, Third Department has exclusive subject matter jurisdiction (see Workers' Compensation Law § 23). --------
Accordingly, defendant's motion is granted and Claim No. 132580 is dismissed in its entirety.
April 9, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion: 1) Notice of Motion filed February 21, 2019; Affirmation of Douglas R. Kemp, Assistant Attorney General, dated February 15, 2019, and attached exhibit. 2) Opposition of Kevin J. Brennan, sworn to March 13, 2019, and attached exhibits. Filed Papers: Claim filed January 29, 2019.