COMICAL ENTERTAINMENT CORPORATION v. CITY UNIVERSITY OF NEW YORK (2009)

Defendants City University of New York, Queens College Kupferberg Center for the Arts, and Vivian Charlop move to dismiss this action based upon lack of subject matter jurisdiction.   Plaintiffs cross-move to transfer this action to the Court of Claims pursuant to CPLR 325(a).

 Education Law § 6224 provides in pertinent part that “[e]xclusive jurisdiction is hereby conferred upon the court of claims to hear, audit and determine the claims of any person against the city university of New York ․ for the breach of a contract relating to construction, reconstruction, improvement, maintenance, operation, purchase or personal services entered into by such university in connection with a senior college of such university.”   There is no dispute that the statute applies to the claims brought against the movants in this matter and therefore this court lacks jurisdiction over such claims.   See Gelin v. Lehman College, 254 A.D.2d 119, 679 N.Y.S.2d 12 (1st Dept. 1998) (“action was properly dismissed for lack of subject matter jurisdiction, Education Law § 6224(4) conferring exclusive jurisdiction upon the Court of Claims over claims for breach of contract against City University involving its senior colleges”).

With respect to plaintiff's cross-motion seeking transfer this action to the Court of Claims, there is a division in the appellate courts as to the applicable standard.   The Third Department has held that

Supreme Court erred in transferring the causes of action against the State to the Court of Claims without first determining whether the Court of Claims had jurisdiction over the subject matter.  N.Y. Constitution, article VI, § 19(a) and CPLR 325(a) permit transfers of certain actions brought in Supreme Court to any other court having jurisdiction of the subject matter (N.Y. Const., art. VI, § 19[a] ).   However, as plaintiff failed to timely and properly comply with the provisions of Court of Claims Act §§ 10 and 11 requiring service of the claim upon the Clerk of the Court of Claims and the Attorney-General, a jurisdictional requirement, the Court of Claims is deprived of subject matter jurisdiction over the claim.

Nish v. Town of Poestenkill, 179 A.D.2d 929, 930, 579 N.Y.S.2d 189 (3d Dept. 1992);  State v. Dewey, 260 A.D.2d 924, 925, 688 N.Y.S.2d 840 (3d Dept. 1999) (same).

However, the Second Department, while acknowledging the Third Department holdings, has more recently held that

The Supreme Court has the inherent authority, pursuant to CPLR 325(a) and N.Y. Constitution, article VI, § 19(a), to transfer actions filed therein to any other court having jurisdiction over the subject matter including, but not limited to, the Court of Claims.   The order dated July 9, 2002, made no determination with respect to whether the plaintiffs satisfied that court's jurisdictional prerequisites but merely removed the action to the appropriate forum without prejudice to the appellants' right to pursue dismissal therein.

Wynne v. DeStaso, 2 A.D.3d 841, 842, 769 N.Y.S.2d 379 (2d Dept. 2003) (citations omitted);  Liddy v. DeStaso, 2 A.D.3d 792, 793, 769 N.Y.S.2d 406 (2d Dept. 2003) (as to “the issue of whether the plaintiffs satisfied that court's jurisdictional prerequisites ․ the appropriate forum to make that determination is the Court of Claims”);  see also State v. Jacobs, 167 A.D.2d 876, 877, 561 N.Y.S.2d 972 (4th Dept. 1990) (“Supreme Court properly transferred to the Court of Claims defendant's counterclaim seeking reimbursement from the State.   Supreme Court lacks jurisdiction over such a counterclaim against the State and has the power to transfer it to any other court having jurisdiction of the subject matter including the Court of Claims”).

 The parties submissions and the court's research have revealed no First Department decision on this issue.   Therefore, the court adopts the Second Department approach of transferring an action to the appropriate court for a jurisdictional determination.   See Brooks v. Board of Higher Ed. and Dormitory Authority of State of NY, 113 Misc.2d 494, 496, 449 N.Y.S.2d 425 (Sup. Ct., N.Y. County, 1982) (“Although this court lacks subject matter jurisdiction the dismissal sought is not appropriate.   Where an action has been mistakenly commenced in a court lacking subject matter jurisdiction, the Supreme Court upon motion, may remove the action to the proper court, upon such terms as may be just”).   Both practically and legally the Second Department's approach appears sounder as it allows the Court of Claims to determine whether its own jurisdictional predicates have been complied with.   This is especially the case where Court of Claims Act 10(6) grants that court a limited discretion in excusing certain filing and notice requirements.   Finally, the record before this court is insufficient to determine whether the jurisdictional predicates have been complied because certain of those predicates take place within the Court of Claims itself.

Accordingly, it is

ORDERED that the motion to dismiss is DENIED WITHOUT PREJUDICE to renew before the Court of Claims;  and it is further

ORDERED that the plaintiff's cross-motion pursuant to CPLR 325(a) is GRANTED and this action is hereby TRANSFERRED to the Court of Claims without prejudice to any of the defenses or claims raised by the parties hereto and the Clerk is directed to transfer the file to the Court of Claims upon the presentation of a copy of this Order with notice of entry and the payment of appropriate fees, if any.

This is the decision and order of the Court.

DEBRA A. JAMES, J.