STATE v. DEWEY (1999)

Appeal from an order of the Supreme Court (Keegan, J.), entered February 24, 1998 in Albany County, which granted plaintiff's motion to dismiss defendants' counterclaim.

Plaintiff commenced this action in Supreme Court to recover costs expended for the cleanup and removal of petroleum at a site owned by defendants.   The appealing defendants thereafter counterclaimed for property damage allegedly incurred during plaintiff's cleanup operation or, alternatively, seeking equitable recoupment, offset and/or transfer of the counterclaim to the Court of Claims.   Plaintiff moved for an order dismissing defendants' counterclaim on the basis that Supreme Court lacked subject matter jurisdiction.   Supreme Court granted the motion and further held that it did not have the power to transfer the matter to the Court of Claims, prompting this appeal.

 We affirm.   Initially, we note that Supreme Court properly determined that it lacked subject matter jurisdiction to hear defendants' counterclaim because, despite defendants' assertion to the contrary, it is clearly one for money damages against the State “for the torts of its officers or employees” (Court of Claims Act § 9[2] ) over which the Court of Claims has exclusive jurisdiction notwithstanding its assertion in a counterclaim (see, State of New York v. Vernooy, 109 A.D.2d 682, 486 N.Y.S.2d 735).   Moreover, although defendants are correct in their assertion that Supreme Court may transfer actions brought therein to any other court having jurisdiction over the subject matter (see, N.Y. Const., art. VI, § 19 [a];  CPLR 325[a] ), we have previously held that failure to timely and properly comply with the notice provisions of Court of Claims Act §§ 10 and 11 deprives the Court of Claims of subject matter jurisdiction (see, Nish v. Town of Poestenkill, 179 A.D.2d 929, 930, 579 N.Y.S.2d 189, appeal dismissed 79 N.Y.2d 1040, 584 N.Y.S.2d 448, 594 N.E.2d 942;  cf., Matter of Henion v. Comptroller of State of N.Y., 197 A.D.2d 807, 808, 603 N.Y.S.2d 78;  see also, Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 722-723, 551 N.Y.S.2d 188, 550 N.E.2d 441).   Accordingly, we find that Supreme Court did not err in holding that it was without power to transfer the counterclaim.

ORDERED that the order is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE, PETERS and SPAIN, JJ., concur.