Amberge v. State

• Decision Date: 29 October 1992
• Citation: 186 A.D.2d 962,589 N.Y.S.2d 118
• Parties: Norman C. AMBERGE, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 118

589 N.Y.S.2d 118

186 A.D.2d 962

Norman C. AMBERGE, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 29, 1992.

Chernin & Gold (Sam P. Monachino, of counsel), Binghamton, for appellant.

Robert Abrams, Atty. Gen. (Michael S. Buskus, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

MERCURE, Justice.

Appeal from an order of the Court of Claims (Hanifin, J.), entered August 30, 1991, which denied claimant's motion for summary judgment and dismissed the claim for lack of subject matter jurisdiction.

Claimant was employed in the competitive class of the State civil service as a recreation assistant. On July 14, 1989, claimant was served with a notice of discipline alleging misconduct in his employment and suspended without pay. Prior to a hearing before an arbitrator, negotiations between claimant's union and the State resulted in an October 13, 1989 written settlement agreement, under the terms of which claimant returned to work in a new assignment and commenced an unconditional six-month probationary period. Despite allegedly satisfactory evaluations, claimant was discharged at the conclusion of the probationary period. As a result, claimant brought this claim alleging the State's breach of the settlement agreement and seeking that he be restored to his employment and awarded lost wages. Following joinder of issue, claimant moved for summary judgment on the issue of liability. The State opposed the motion and sought dismissal of the claim upon, inter alia, the ground that the Court of Claims lacked subject matter jurisdiction over the claim. The Court of Claims dismissed the claim on that basis and claimant appeals.

We affirm. Even accepting, arguendo, claimant's contention that his claim is founded upon the State's breach of the settlement agreement and does not merely contest the propriety of claimant's dismissal from employment (compare May v. State of New York, 86 A.D.2d 898, 448 N.Y.S.2d 527, aff'd, 57 N.Y.2d 505, 457 N.Y.S.2d 216, 443 N.E.2d 464, with Austin v. Board of Higher Educ. of City of N.Y., 5 N.Y.2d 430, 186 N.Y.S.2d 1, 158 N.E.2d 681), inasmuch as the primary relief sought by claimant, specific performance of the settlement agreement, is equitable in nature, the Court of Claims lacks subject matter jurisdiction over the claim ( see, Pryles v. State of New York, 86 Misc.2d 205, 380 N.Y.S.2d 429, aff'd on op'n below, 51...