Board of Educ. of City of New York v. State
| Decision Date | 17 June 1982 |
| Citation | 452 N.Y.S.2d 753,88 A.D.2d 1057 |
| Parties | , 5 Ed. Law Rep. 945 BOARD OF EDUCATION OF the CITY OF NEW YORK, Respondent, v. STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen. (Richard J. Dorsey, Asst. Atty. Gen., of counsel), for appellant.
Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City (Pamela Seider Dolgow, Asst. Corp. Counsel, New York City, of counsel), for respondent.
Before KANE, J. P., and MIKOLL, LEVINE, YESAWICH and WEISS, JJ.
Appeal from an order of the Court of Claims entered December 19, 1980, which granted claimant's motion for leave to file a late claim.
Claimant, the Board of Education of the City of New York, participated in the State Urban Education Program, a program by which the State provided supplementary funds to urban school districts to aid them in instructing children with educational needs associated with poverty. In 1978, after conducting an audit of claimant's programs for the 1972-1973 fiscal year, the Comptroller determined that $3,898,879 received by claimant should have been disallowed. This amount was then withheld from claimant's 1978-1979 appropriation. On June 24, 1980, claimant moved pursuant to section 10 of the Court of Claims Act for permission to file a late claim. This motion was granted and the instant appeal by the State ensued.
In this claim, claimant alleges that $3.44 million of the above sum was improperly disallowed and subsequently withheld. Although it concedes the power of the Comptroller to audit the program in question, claimant contends that in his audit the Comptroller made erroneous interpretations which were in "excess of his authority and invalid as a matter of law".
Where, as here, the Comptroller exercises his power to audit, he acts in a quasi-judicial capacity (see N.Y.Const., art. V, § 1; City of New York v. State of New York, 40 N.Y.2d 659, 667, 389 N.Y.S.2d 332, 357 N.E.2d 988; People ex rel. Grannis v. Roberts, 163 N.Y. 70, 57 N.E. 98). Accordingly, since the State has not waived its immunity for acts involving the exercise of discretion or judgment of a quasi-judicial nature (Abruzzo v. State of New York, 84 A.D.2d 876, 877, 444 N.Y.S.2d 739; Gross v. State of New York, 33 A.D.2d 868, 306 N.Y.S.2d 28), the Court of Claims lacks jurisdiction of the subject matter. The proper method for claimant to have challenged the Comptroller's determination was by commencing a CPLR article 78 proceeding against the Comptroller to review the audit (cf. Quayle v. State of New York, 192 N.Y. 47, 54, 84 N.E. 583).
Order reversed, on the law, without costs, and claimant's motion for leave to file a late claim dismissed.
KANE, J. P., and MIKOLL and LEVINE, JJ., concur.
There is no question that the Comptroller's audit is an integral part of this suit. However, the...
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