WHITAKER v. N.Y. CSCU

Full title: BARBARA WHITAKER, Plaintiff, v. NEW YORK STATE CHILD SUPPORT COLLECTION…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 27, 2011

2011 N.Y. Slip Op. 31786 (N.Y. Sup. Ct. 2011)

Opinion

401463/2010.

June 27, 2011.

Barbara Whitaker, pro se, for Plaintiff.

Elizabeth Haynes, Esq., Child Support Litigation Unit, for Defendants.

DECISION AND ORDER

HON. SALIANN SCARPULLA, J.

Papers considered in review of this order to show cause and cross motion to dismiss:

Order to Show Cause................1 Notice of Cross Motion.............2 Dec in Opp.........................3

In this Article 78 proceeding, petitioner Barbara Whitaker ("Whitaker") challenges respondent New York City Human Resources Administration s/h/a New York State Child Support Collection Unit's ("CSCU") denial of her request to take further action to collect child support arrears that she is allegedly owed by her son's father, James Phelps ("Phelps"). Whitaker seeks an order directing CSCU to pay her the back child support arrears, in the amount of $21,274.41 and additional monetary compensation for emotional distress and loss of her rent-stabilized apartment in the amount of $1,250,000.00. CSCU cross-moves to dismiss the petition.

In her petition, Whitaker alleges that CSCU failed properly to collect the child support arrears from Phelps. Whitaker alleges that she contacted CSCU on December 31, 2008, to request that CSCU deduct more money from Phelps's income towards the child support arrears. CSCU declined this and all other subsequent requests from Whitaker. Whitaker further alleges that because of the CSCU's actions, she suffered emotional distress and was evicted from her rent-controlled apartment.

CSCU cross-moves to dismiss this petition arguing inter alia that the petition: (1) is time barred under the statute of limitations; (2) fails to state a cause of action; and (3) is barred by the Supremacy Clause of the United States Constitution.

Discussion

An Article 78 proceeding may only be brought in a certain set of circumstances. An Article 78 proceeding is appropriately brought to determine "whether the body or officer failed to perform a duty enjoined upon it by law" (CPLR 7803 (1)) or "whether a determination was [ . . . ] affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 (3)). Article 78 proceedings are also appropriate to: prevent a judicial or quasi-judicial authority from proceeding "without or in excess of jurisdiction" (CPLR 7803 (2); Dondi v. Jones, 40 N.Y.2d 8, 13 (1976)); to review the formal decision of an agency after a hearing (CPLR 7803 (4)); or to challenge the decision of a state official in the area of education (CPLR 7803 (5)).

An Article 78 proceeding brought to compel a body to perform a duty required under the law, an action formerly known as a writ of mandamus, "'[ . . . ] is an appropriate remedy to compel performance of a statutory duty that is ministerial in nature but not one in respect to which an officer may exercise judgment or discretion.'" Liggett v. Pichler, 142 A.D.2d 206, 210 (1^st Dept. 1988), quoting Posner v. Levitt, 37 A.D.2d 331, 332 (3^rd Dept. 1971). See also Matter of Maron v. Silver, 14 N.Y.3d 230 (2010); Gimprich v. Board of Education of the City of New York, 306 N.Y. 401 (1954); People ex rel. Hammond v. Leonard, 74 N.Y. 443, 445 (1878).

Here, Whitaker has filed this Article 78 petition alleging that CSCU has failed to comply with her requests to take further and different action against Phelps. Essentially, Whitaker alleges that CSCU has failed to perform its duty in accordance with the applicable law. Whitaker's main complaint stems from the fact that she believes CSCU should have deducted sixty-five percent of Phelps' wages, instead of the fifty-five percent that the CSCU was deducting. It is unclear from her petition on what ground Whitaker seeks Article 78 relief. As Whitaker is prosecuting this proceeding pro se the Court will treat her petition as seeking both mandamus relief and review under the "arbitrary and capricious" standard.

The CPLR provision pursuant to which CSCU executed against Phelps' wages (CPLR 5242 (c) (2) (i)) and the provision that Whitaker believes to be applicable (CPLR 5242 (c) (2) (ii)) both state that the amount deducted by the employer "shall not exceed" the given percentage. This language clearly demonstrates that the CSCU has a sufficient degree of discretion to determine the deduction to be taken, and its wage deduction authority is not simply the application of a ministerial act. As such, mandamus to compel does not lie. See Mullen, 74 N.Y.2d at 583; Stratton v. Lyons, 36 N.Y.2d 686 (1975) ("mandamus [ . . . ] was particularly inappropriate where a relevant statutory duty involved the exercise of judgment and discretion").

In addition, the Court finds that CSCU's action with regards to collecting the child support arrears owed to Whitaker was not arbitrary or capricious. Whitaker has failed to show that CSCU was acting in bad faith to recover the arrears, and has submitted no evidence, other than her belief that CSCU should have deducted more, to show that CSCU was acting in any way contrary to the law. For example, while Whitaker claims that the amount of income collection should be increased due to the emancipation of Phelps' other dependent, Whitaker has failed to provide any documentation to support this allegation. She has also failed to show that CSCU did not consider any alleged emancipation of other dependents or even that CSCU had, but chose to ignore, such alleged evidence.

Lastly, Article 78 proceedings are meant to address the determination of an administrative agency, but a petitioner may seek damages if the damages are incidental to the primary relief sought. Gross v. Perales, 72 N.Y.2d 231 (1988). But, "where a party seeks only money damages against the State, the proper forum for such an action is the Court of Claims." Id. at 235 (internal citations omitted).

Here, Whitaker has not only requested monetary relief incidental to the challenged administrative determination, but has also sought to introduce independent tort claims for negligent infliction of emotional distress against CSCU. Whitaker's $1,250,000.00 claim of tort damages eclipses her request for additional child support of $21,274.41. Whitaker must assert her tort claims in a plenary action, not through the limited scope of an Article 78 proceeding. See City of New York v. Wing, 12 A.D.3d 180 (1^st Dept. 2004) (holding that an Article 78 proceeding may properly be dismissed "on the ground that it essentially seeks to recover money damages on the ground of negligence").

In accordance with the foregoing, it is hereby

ORDERED and ADJUDGED that the motion to dismiss the petition by defendant New York City Human Resources Administration s/h/a New York State Child Support Collection Unit is granted; and it is further

ORDERED and ADJUDGED that the petition of Barbara Whitaker is denied and dismissed.

This constitutes the decision, order and judgment of the Court.