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Starker v. Trump Village Section 4, Inc.

104 A.D.3d 937 Court N.Y. App. Div. Decision date 2013-03-27 English

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p. 937
Oscar Starker, Appellant, v Trump Village Section 4, Inc., et al., Defendants, and New York State Division of Housing and Community Renewal et al., Respondents.
[960 NYS2d 912]

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated December 2, 2010, which granted the motion of the defendants New York State Division of Housing and Community Renewal and Commissioner of New York State Division of Housing and Community Renewal to dismiss the complaint insofar as asserted against them, without prejudice to the plaintiff commencing a claim in the Court of Claims.

Ordered that the order is affirmed, with costs.

Claims for damages against state agencies, officers, and

p. 938
departments in their official capacity, where the matter is, in reality, one against the State, i.e., where the State is the real party in interest, can be prosecuted only in the Court of Claims (see Morell v Balasubramanian, 70 NY2d 297 , 300 [1987]; Power Cooling v State Univ. of N.Y., 284 AD2d 317 [2001]; Automated Ticket Sys. v Quinn, 90 AD2d 738 , 739 [1982]). Here, the Supreme Court properly directed dismissal of the complaint insofar as asserted against the defendants New York State Division of Housing and Community Renewal and Commissioner of New York State Division of Housing and Community Renewal without prejudice to the plaintiff commencing a claim in the Court of Claims.

Moreover, under the circumstances presented, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff’s request that the matter be transferred to the Court of Claims pursuant to CPLR 325 (a) instead of being dismissed without prejudice. Balkin, J.E, Chambers, Roman and Hinds-Radix, JJ., concur.

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