Court of Claim Action Not Required If the Claim for Money Damages Is Incidental

In Matter of Gross v. Perales (72 N.Y.2d 231, 532 N.Y.S.2d 68, 527 N.E.2d 1205), the New York State Department of Social Services (DSS) withheld $ 20 million from money due to a municipal social service agency as a penalty for prior unauthorized receipts. The agency commenced an Article 78 proceeding to annul that determination, alleging that an incorrect audit standard had been applied, but the State argued that any monetary recovery had to be obtained by way of a Court of Claims action. The State argued that either the claim was, in essence, one for money damages and thus should be litigated in full in the Court of Claims or, alternatively, that the Article 78 proceeding was the proper forum for deciding if the audit was properly conducted but, should its result be annulled, a separate action would have to be commenced to recover money damages from the State (72 N.Y.2d at 235). The Court of Appeals disagreed and held that, while large in amount, the claim for money damages was "incidental" to other relief being sought in the Supreme Court proceeding, explaining that if the threshold issue - whether DSS had acted arbitrarily and capriciously in applying a certain audit standard - was determined in the petitioner's favor, the agency would be entitled to reimbursement as a matter of law, whether or not a court directly ordered such payment. "Upon nullification of the underlying administrative action, the State had a statutory duty to reimburse the City" ( id, at 236). The high court determined that it was appropriate, therefore, for Supreme Court to take jurisdiction of the "incidental" demand for money damages, because if an award were made, the court would be "merely direct[ing] the State to fulfill its statutory duty" (id). This standard was later discussed and applied in White v. State of New York (161 Misc.2d 938, 941, 615 N.Y.S.2d 811), in which a Court of Claims action was held to be barred by the doctrine of res judicata because it asserted a claim for money damages that, although not asserted in Supreme Court, would have been "incidental" to an earlier Article 78 proceeding. Both the proceeding and the action arose from an arbitrator's award that terminated the employment of a State worker, and in both forums the worker asserted that she should not have been terminated until the award was judicially confirmed. In the earlier proceeding, it was determined by Supreme Court that the award was confirmed 12 months after it was issued, and if the employee's legal theory had been correct (i.e., if her employment could not be terminated until the award was confirmed), the State would have been "enjoined by law to pay her salary until confirmation." Because she would have been automatically entitled to her salary for the 12 month period between termination and confirmation in the Article 78 proceeding, her subsequent Court of Claims action was therefore barred by res judicata. Former Judge Gerard M. Weisberg articulated the standard as follows: "Incidental means that the same facts which justify equitable relief justify money damages" (id, at 941).