Karaffa v. Simon
| Decision Date | 13 March 1961 |
| Citation | 29 Misc.2d 219,221 N.Y.S.2d 63 |
| Parties | Application of Joseph KARAFFA, d/b/a New York Institute of Real Estate, Petitioner, for an Order Compelling Acceptance and Approval of Real Estate Course and School v. Caroline K. SIMON, Individually and as Secretary of State, Department of State and Abraham S. Wechsler, Individually and as Director of Licenses, Division of Licenses, Department of State and Jacob J. Yaim, Individually and as Examination Technician, Division of Licenses, Department of State and Bernard G. Gordon, individually and as Deputy Secretary of State, Department of State, Respondents. |
| Court | New York Supreme Court |
Leo J. Gangl, Ithaca, for petitioner.
Louis J. Lefkowitz, Atty. Gen., Paul C. Reuss, Executive Asst. Atty. Gen., and Herbert H. Smith, Asst. Atty. Gen., of counsel, for respondents.
On the ground that it was arbitrary, petitioner in this article 78 [Civil Practice Act] proceeding applies for an order annulling a determination of the respondent Secretary of State which denied his application for the approval of a real estate course and directing the issuance of a license to conduct such. (Real Property Law, § 441, subd. 1.) He also seeks compensatory damages against the respondents for financial losses allegedly suffered by him on account of the denial.
The respondents appear specially to object to the jurisdiction of the court on the ground that it has neither jurisdiction of the subject matter of the proceeding in respect of the claim for damages nor of the respondents individually . They also raise objections in point of law that the proceeding was not timely instituted and that the petition fails to state facts which would entitle the petitioner to the relief which is sought.
To the extent that the respondents are accosted in their official capacities, the State, as they contend, is the real party in interest and, of course, may be sued for damages only with its specific consent. (Psaty v. Duryea, 306 N.Y. 413, 419, 118 N.E.2d 584, 587; Niagara Falls Power Co. v. White, 292 N.Y. 472, 480, 481, 55 N.E.2d 742, 746; Sanders v. Saxton, 182 N.Y. 477, 479, 75 N.E. 529, 1 L.R.A.,N.S., 727.) Such may be fairly found in section 1300 of the Civil Practice Act which provides 'In an appropriate case, the court may award the petitioner the damages which he has sustained.' With respect to such part of the final order as awards petitioner 'incidental relief, such as * * * damages * * * [it] may be entered and docketed, and enforced as a final judgment in an action.' (Civ.Prac.Act, § 1303, supra.) Thus by statute the State has surrendered, in an appropriate case, its sovereign immunity against the prosecution of a claim by a petitioner for damages incidental to the primary relief which is sought in a mandamus proceeding. (Reiser v. State of New York, 198 Misc. 647, 98 N.Y.S.2d 705; Marasco v. State of New York, 182 Misc. 505, 44 N.Y.S.2d 694; Niagara Falls Power Co. v. White, supra, 292 N.Y. 480, 481, 55 N.E.2d 746.) The Legislature must be presumed to know the frequent impact of article 78 on the acts of the chosen agents of the State. Had it intended to restrict liability for the accessory relief which the statute permits solely to controversies between private suitors and to leave the State to answer only in the Court of Claims for such, it would have been simple to have derogated the statute in this respect. In People ex rel. Goring v. President and Board of Trustees, Village of Wappingers Falls (151 N.Y. 386, 389, 45 N.E. 852, 853), in construing a predecessor statute contained in the Code of Civil Procedure, the court said: 'It is the evident intent of the legislature that a relator who has secured his final order for the peremptory writ [of mandamus] ought not to be driven to his action for damages and subjected to the delays incident to a second litigation; but if he so elects the court must award him his damages in the pending proceeding.'
Breen v. Mortgage Commission of State of New York (285 N.Y. 425, 431, 35 N.E.2d 25, 28), illustrative of the authorities on which the respondents rely, is distinguishable. There, the Mortgage Commission Act empowered the commission 'to sue and be sued'. McK.Unconsol.Laws, § 4804, subd. 1. It was held that this language did not amount to a consent by the State to be sued for damages arising from the alleged misconduct of the commission in the administration of certificated mortgages but was intended by the Legislature to be restricted to 'litigation in which the Commission might be involved as a necessary part of the administration of the certificated mortgages generally' as to...
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... ... John's L Rev 86, 99-100, 116, 118). After one decision (Matter of Karaffa v. Simon, 29 Misc.2d 219, 221 N.Y.S.2d 63, mod. on other grounds 14 A.D.2d 978, 222 N.Y.S.2d 47) permitted recovery of lost profits as damages ... ...
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