|Claimant short name:||CHEVALIER|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES ROAD TEST EXAMINER #702|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||REYNAULT CHEVALIER, pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||September 5, 2019|
|See also (multicaptioned case)|
Reynault Chevalier, ("Chevalier"), proceeding pro se, is seeking to challenge a "road test decision" by the New York State Department of Motor Vehicles and "Road Test Examiner #702" allegedly rendered on April 23, 2019 by way of a claim filed on May 15, 2019. More particularly, Chevalier, who labels himself "petitioner", claims that the "decision made by Examiner #702" (Claim p 2) should be reversed and that he should be granted a "re-test free of charge. . . for a commercial driver's license-Class A (Claim p 2)." Although this matter was filed in the Court of Claims, the caption is for the Supreme Court, New York County and the form used indicates that it is for a special proceeding.
Chevalier did not comply with the filing fee requirement pursuant to Court of Claims Act § 11-(a)(1) at the time of his initial filing. By order dated June 10, 2019 [Sise, A.P.] Chevalier was required to pay the statutory filing fee within 120 days of the order. The record reflects that such a payment was made within the requisite time period.
Furthermore, Chevalier's purported claim is fashioned as a special proceeding challenging an administrative determination, which only could be brought by way of a special proceeding pursuant to CPLR Article 78. "[I]t is well settled that '[t]he Court of Claims lacks subject matter jurisdiction of a cause of action where the primary relief sought is obtainable in an article 78 proceeding, regardless of how a claimant characterizes his [or her] claim' " (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005], quoting, Young v State of New York, 179 Misc 2d 879, 882 ; see, Trump on the Ocean, LLC v State of New York, UID No. 2009-015-186 [Ct Cl Collins, J., July 14, 2009)].
Furthermore, there is no affidavit of service attached to Chevalier's papers indicating that the Office of the Attorney General was served with this claim within ninety days of the accrual of Chevalier's claim in accordance with Court of Clams Act §10(3). No opposition has been filed by the State, which would tend to support the conclusion that jurisdiction was not obtained against the State. Since, however, it is beyond dispute that this Court is without subject matter jurisdiction to consider this claim, it is unnecessary to reach the issue of personal jurisdiction by service upon the State.
In view of the foregoing, Claim No. 133097-A is dismissed for lack of subject matter jurisdiction.
September 5, 2019
Central Islip , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims