County of Broome v. State

Indian land claim suits.^[1] Claimants seek to bottom liability on State Law § 10 which provides that "The governor shall, at the expense of the state, employ counsel and provide for the defense of any action or proceeding, instituted against the state, or against any person deriving title therefrom, to recover any lands within the state, under pretence of any claim inconsistent with its sovereignty and jurisdiction.”

Before passing on the State’s motion, it is noted that the claimants previously sought unsuccessfully to recover these same expenses in a CPLR article 78 proceeding. (See, Matter of County of Broome v Cuomo, 102 AD2d 266 , affd 64 NY2d 1051 .) No significance should be attached to the court’s rejection of the claim in that proceeding, since it is clear that such incidental relief was not available against the State and could only be recovered in a suit commenced in the Court of Claims. (See, CPLR 7806.) What is significant, however, is that a determination was made that State Law § 10 unequivocally imposed on the Governor the nondiscretionary duty to employ counsel and provide for claimants’ defense with respect to two of the three underlying suits.^[2] As a result of the CPLR article 78 proceeding, a judgment in the nature of mandamus was granted directing the Governor to comply with the statute.^[3] To date, no action has been taken.

Turning to the State’s motion, it is argued that the sole remedy for the statute’s breach is a CPLR article 78 proceeding. The State contends that no private cause of action for damages will lie.

In support of its position, the State argues that the Governor’s failure to undertake representation was a deliberative act, discretionary in nature, and governmental in character. In sum, it relies on the discretionary exception (see, Rottkamp v Young, 21 AD2d 373 , affd 15 NY2d 831 ; Gross v State of

New York, 33 AD2d 868 ) to the State’s waiver of immunity. (See, Court of Claims Act § 8; Bernardine v City of New York, 294 NY 361 .) This argument was considered and rejected in the aforesaid CPLR article 78 proceeding. Such a finding was necessary to the court’s ultimate determination that the Governor was to comply with the dictates of the statute. Therefore, the issue of whether the statute lent itself to discretion may not be relitigated in this action. (See, Schwartz v Public Administrator, 24 NY2d 65 ; see also, 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.25.)

Whether the claim states a cause of action will necessarily depend on an analysis of the statute. If a legislative intent to create a private cause of action for damages cannot be discerned, the claim must be dismissed.

Where, as here, the statute does not provide a remedy for its breach, it is for the court to determine what the Legislature intended.^[4] (See, Merrill Lynch, Pierce, Fenner & Smith v Curran, 456 US 353 , 374-383.) In this regard, whether a private cause of action for damages was intended will turn in the first instance on whether the claimants are members of the class for whose special benefit the statute was enacted. (See, Motyka v City of Amsterdam, 15 NY2d 134 ; Cort v Ash, 422 US 66 .) In the present case, there is no question that the claimants are members of the class sought to be protected by the statute. They are owners of land, the title to which was derived from the State. The fact that the claimants are members of the protected class is not, however, decisive of the issue. In addition, an examination is to be made of the statute or its legislative history to see whether there are any indications of an intent to create or deny a private cause of action for money damages. (See, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314 .) The statute first appeared in 1828 (see, Rev Stat of NY, part I, ch I, tit II, § 3 [2d ed]) and has remained virtually unchanged since. A search of the statute and its legislative history is not revealing. What is clear, however, is that the Legislature would not have created a right without a remedy. Certainly, the Legislature could not have intended CPLR article 78 relief to be exclusive. For, in such a case, the aggrieved party would be denied compensation for his injuries. (See, Abounader v Strohmeyer & Arpe Co.,

243 NY 458 .) Finally, and most importantly, consideration must be given to whether a private cause of action for damages is consistent with the purpose underlying the legislative scheme. (See, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314 , supra; Abounader v Strohmeyer & Arpe Co., 243 NY 458 , supra; Cort v Ash, 422 US 66 , supra; Restatement [Second] of Torts § 874A comment i.) Unquestionably, a private cause of action for damages is consistent here. The purpose of the statute is to assure that land claims contesting the State’s sovereignty and jurisdiction are defended at public expense. Its intention is to hold the landowner harmless. A suit for money damages would accomplish this purpose. Moreover, to allow such an action would not impose a crushing burden on the State, since the Legislature contemplated the action be defended at public expense in the first place. Given the foregoing, a clear legislative intent to create a private cause of action for damages is discerned.^[5]

With respect to the issue of damages, the claimants allege that by reason of the State’s inaction, they have incurred legal fees and other related expense in defense of the ejectment actions. They assert that the legal services were necessary to prevent or lessen damages allegedly flowing from the State’s breach of its statutory duty. Such expenditures are recoverable as an item of damage. (Jewelers’ Mercantile Agency v Rothschild, 6 App Div 499 ; Clason v Nassau Ferry Co., 20 Misc 315 , affd 27 App Div 621 .)

Accordingly, the State’s motion for an order granting summary judgment dismissing the claim in its entirety on the basis that it fails to state a cause of action is denied.

Turning to the State’s motion for partial summary judgment, the same must be granted to the extent that the claim asserts a cause of action for legal fees incurred in defense of the Federal suit that sought money damages based on wrongful possession. The holding in Matter of County of Broome v Cuomo ( 102 AD2d 266 , affd 64 NY2d 1051 , supra) is dispositive of the issue and the claimants are collaterally estopped from asserting such a claim in the present action. (See, Schwartz v Public Administrator, 24 NY2d 65 , supra; see also, 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.25.)