Summary
affirming dismissal of 42 USC § 1983 claim because payment of money allegedly wrongfully recouped constituted retrospective relief
Summary of this case from Giaquinto v. Commissioner of New York State Department of HealthOpinion
524, 524A
March 18, 2003.
Judgment, Supreme Court, Bronx County (Joseph Giamboi, J.), entered December 20, 2001, dismissing plaintiff's complaint for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, and bringing up for review the underlying order, same court and Justice, entered November 2, 2001, granting defendants' motion to dismiss pursuant to CPLR 3211, unanimously affirmed, without costs. Appeal from the order entered November 2, 2001, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Peter G. Bergmann, for plaintiff-appellant.
David Lawrence III, for defendants-respondents.
Before: Tom, J.P., Saxe, Rosenberger, Lerner, Marlow, JJ.
The complaint failed to state a cause of action because the named defendants, who are state officials sued in their official capacity for their official conduct in recouping the funds at issue, are not subject to suit under 42 U.S.C. § 1983, the relief sought by the plaintiff, i.e., payment of money alleged to have been wrongfully recouped based on the past conduct of defendants, being exclusively retrospective and not directed at remedying any continuing violation of federal law (see Will v. Michigan Dept. of State Police, 491 U.S. 58; Kentucky v. Graham, 473 U.S. 159, 167 n 14). While plaintiff might have sought to recover the funds allegedly wrongfully recouped from it by defendants by means of a proceeding pursuant to CPLR article 78 (see e.g. New York Health Hosps. Corp. v. McBarnette, 84 N.Y.2d 194, 205), such a proceeding was already time-barred when the instant action was commenced.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.