Opinion
# 2011-010-022 Claim No. 119563 Motion # 2011-010-022 Claim No. M-79674 # 2011-010-022 Claim No. M-79709
07-25-2011
GEORGE MALICO v. THE STATE OF NEW YORK
Synopsis
defendant's motion to dismiss GRANTED, lack of subject matter jurisdiction Case information
UID: 2011-010-022 Claimant(s): GEORGE MALICO Claimant short name: MALICO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119563 Motion number(s): M-79674, M-79709 Cross-motion number(s): Judge: Terry Jane Ruderman GEORGE MALICO Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Elyse Angelico, Assistant Attorney General Third-party defendant's attorney: Signature date: July 25, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-6 were read and considered by the Court on defendant's motion to dismiss and claimant's motion for summary judgment:
Defendant's Notice of Motion, Supporting Affirmation and Exhibits......................1
Claimant's Notice of Motion for Summary Judgment, Response to Motion to Dismiss, Claimant's "Affirmation" in Support of Summary Judgment and Exhibits..2
Defendant's Affirmation in Support of Motion to Dismiss and in Opposition to Claimant's Motion for Summary Judgment and Exhibits.........................................3
Claimant's Amended Motion for Summary Judgment and Exhibits.......................4
Defendant's Affirmation in Opposition to Claimant's Amended Motion for Summary Judgment...................................................................................................................5
Claimant's Affidavit in Response to Defendant's Affirmation in Opposition to Summary Judgment Motion......................................................................................6
The Claim
Given a most liberal reading of this claim, it appears that claimant's pay has been garnished due to his failure to make child support payments and the alleged wrong is that claimant was never presented with a "verified instrument" (Claim No. 119563). Therefore, claimant seeks $521,752.80 for the State's "unjust enrichment" (id.). The Notice of Intention to File a Claim, attached to the claim, states:
"current assessment [as of November 27, 2010] is $104,350.56 per person for constructive fraud and bad faith. The numbers of persons (5) are:
(1) NYS CHILD SUPPORT PROCESSING CENTER PO BOX 15368 ALBANY NY 12212-5368(id.). The Notice of Intention to File a Claim further states that the amount of $521,752.80 will become due and payable on December 15, 2010 and if payment is not received, claimant will initiate a claim against the State for collection.
(2) Westchester County Child Support Enforcement 100 E. First Street, 5th Floor Mt. Vernon, New York 10550
(3) Café Mirage LLC EIN #134116132 531 North Main Street Port Chester N.Y. 10573
(4) Investigator known only as EC4
(5) The State Of New York"
Defendant's Motion to Dismiss
Defendant moves to dismiss the claim for, inter alia, lack of subject matter jurisdiction and because claimant's redress cannot be had against the State. In support of its motion, defendant submits the Affidavit of Brian S. Wootan, an attorney in the Office of Legal Affairs, Office of Temporary and Disability Assistance (OTDA) and assigned to work with the New York State Division of Child Support Enforcement (DCSE), a division of OTDA (Defendant's Motion, Ex. E). Wootan's affidavit provides an overview of the statewide Child Support Management System (CSMS) and the details of the particular income execution regarding claimant in this matter. According to Wootan, the CSMS records indicate that a Child Support Order was entered on June 1, 1995 in Brevard County, Florida and registered in New York in 2009 for enforcement against claimant pursuant to the Uniform Interstate Family Support Act(Defendant's Motion, Ex. E). The CSMS records further show that as of March 28, 2011, claimant owed $44,905.09 in child support arrearage (Defendant's Motion, Ex. E). The Westchester County Support Collection Unit (SCU), which acts under authority of the Social Services Law (see Social Services Law §111-h; Matter of Catera v Suffolk County Support Collection Unit of Suffolk County Dept. of Social Servs., 155 AD2d 663, 664), issued an income execution, under authority of CPLR 5241, to claimant's employer due to the child support arrears (see Matter of Sferrazza v Bergdorf Goodman, 213 AD2d 44, 47 [CPLR 5241(b)(1) provides that an income execution to aid in enforcement of support may be issued whenever a debtor is in default]).
Thus, claimant's reliance upon the Uniform Commercial Code and his demand for a verified instrument is misplaced and inapplicable to the facts of this matter.
Neither OTDA nor DSCE issued an income execution to claimant's employer and they do not appear in any proceedings contesting the income executions. Thus, claimant's redress is not appropriately sought against the State. Additionally, the Court of Claims does not have subject matter jurisdiction to review the determinations of an administrative agency, such as SCU; therefore the claim warrants dismissal (see Matter of Salahuddin v Connell, 53 AD3d 898 [Court of Claims has no subject matter jurisdiction to entertain claims seeking review of an administrative agency's determination; such a dispute is governed by CPLR Article 78]).
It is noted that claimant may have other available remedies and avenues to challenge the garnishment of his wages; however the Court of Claims does not have jurisdiction to hear such matters or to award such remedies (see e.g. Serafimovs v Serafimovs, 134 AD2d 422 [income execution pursuant to CPLR 5241 to collect child support payments may be challenged under CPLR 5241(e)]; Matter of Catera v Suffolk County Support Collection Unit of Suffolk County Dept. of Social Servs., 155 AD2d 663, supra [Article 78 proceeding to review determination of SCU denying application to vacate income execution]; Ford v Department of Social Servs., 2011 WL 1458138 [SDNY] [CPLR §5241(a)(8) and (e) provides an opportunity to challenge SCU's execution for enforcement of support or arrears; if SCU does not agree with the objection, the debtor may file an Article 78 proceeding in Supreme Court to review the agency's determination]; Lombardi v Suffolk County, No. 04-1216 , 2007 WL 446733 [EDNY] [garnishment issued by SCU was reviewable by SCU and its actions were reviewable pursuant to an Article 78 proceeding]).
Accordingly, defendant's motion to dismiss is GRANTED.
Claimant's Motion and Amended Motion for Summary Judgment
In response to defendant's motion to dismiss, claimant brought a motion for summary judgment seeking judgment in the amount of $521,752.80, arguing, inter alia, that "[d]efendant does not refute claimant's demand for $521,752.80" and that the State's "[s]ilence is equivalent with fraud" (Claimant's Response to Motion to Dismiss and "Affirmation" in Support of Summary Judgment, ¶¶5, 10). Claimant also submitted an amended motion for summary judgment with exhibits. In claimant's amended motion, claimant again maintains that defendant has not refuted the "account as stated for $521,752.80" and claimant further argues that the State's failure to refute the amount has created "an operable contract" which can be sent to all agencies, including the State Comptroller, for payment (Claimant's Amended Motion for Summary Judgment, ¶2A, ¶10).
In light of this Court's determination granting defendant's motion to dismiss, claimant's motion and amended motion for summary judgment are rendered moot.
July 25, 2011
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims