Leirer v. Caputo ( 1992 )

Rosenblatt, J. (dissenting).

I subscribe fully to the majority’s statements regarding the Comptroller’s authority to protect public funds, but I cannot endorse the extension of the common-law right of recoupment to empower the Comptroller, over the petitioner’s protest, to extract money from her paychecks when he lacked legal authorization, or judicial adjudication or intervention. Indeed, this appears to be the first reported adjudication in the history of American law, and perhaps the common law as well, in which the common-law right of recoupment has served to authorize an official, unilaterally, to reach into an employee’s paycheck for claimed underwork. I believe that the Supreme Court was correct in holding the Comptroller’s action to be illegal.

I.

After conducting his investigation, the Comptroller, Joseph R Caputo, concluded, in essence, that Elaine A. Leirer did not put in enough time to justify her salary as Senior Deputy County Clerk. He computed her alleged absenteeism in an audit, and determined that she should pay the County back.

He further determined that he would implement this objective by taking the money out of her salary. Ms. Leirer protested vigorously and, with counsel, immediately disputed Mr. Caputo’s actions and authority, and commenced the instant proceeding and action seeking, among other things, relief pursuant to CPLR article 78. She claims that the proof and records will refute Mr. Caputo’s claims and eventually bear her out, at an impartial trial, in a court of law.

Although the Comptroller, to be sure, has broad powers, I find the procedure he used to be seriously flawed in that no tribunal was convened, no witnesses were sworn, no testimony was taken by anyone, no arbitration was conducted, and no contract was relied upon. Furthermore, the procedure suffered from the absence of any judicial action or legislative approval, and the Comptroller sought none. Indeed, despite the legislative design, no review of any kind was occasioned by anyone, beyond that of Mr. Caputo himself. He alone then considered possible sanctions, weighed the appropriate penalty, and with no claimed recourse to Suffolk County precedent, proceeded to carry it out, determining that 10% of Ms. Leirer’s paychecks was apt.

Beyond what I would judge to be the absence of legal procedures to support the Comptroller’s actions under any circumstances, there is another facet to this case, and a troubling one. Ms. Leirer states that she had served as the chairperson of a political party, and in that capacity had worked against Mr. Caputo’s candidacy in a primary for Suffolk County Executive. She claims that Mr. Caputo is retaliating against her. She alleges that the timing of the onset of the audit reveals as much. In the record she includes an exhibit, a Newsday article dated September 23, 1988, in which Mr. Caputo attacks her in headlines entitled "County Aide Accused of Absences From Job. Caputo Accuses County Aide of Absences”. She stresses that Mr. Caputo made these public accusations seven months before his final audit report, which he released in early May of 1989. Although this aspect of the case is not easily put aside, I would conclude that the Comptroller’s actions were illegal even if we assume his motives to have been entirely proper.

The majority, in sustaining his actions, maintains that the Comptroller did not need express legislative authority to dock Ms. Leirer’s salary, and that his power to do so springs from his common-law authority and duty to safeguard public funds. In my view, the Comptroller violated express provisions of the Suffolk County Charter, rendering his actions illegal. Moreover, there are several reasons why the invocation of the common-law right of recoupment to sustain the Comptroller’s actions amounts to an unwarranted extension of that doctrine.

II.

The Suffolk County Charter does not recognize, expressly or impliedly, the doctrine of "recoupment” by authorizing the docking of employees’ pay. Nowhere in the Charter do the words "recoupment” or any comparable words or concepts appear. Nowhere in the Charter is a fiscal officer given the power to invade the paycheck of an employee upon a claim of the kind involved here.

The Suffolk County Charter provision cited by the majority (Suffolk County Charter art V, § C5-2) spells out the Comptroller’s duties and limitations (see also, Matter of Cohalan v Caputo, 94 AD2d 742), and Suffolk County Charter article V, § C5-4 (B) contemplates a procedure by which the Comptroller’s office performs and releases audits, following which the department head is required to appear before the County Legislature "for the purpose of explaining what actions have been taken to implement the recommendations” of the Comptroller or to explain why the recommendations were not implemented, if that be the case. This procedure was not followed.

The department head (here, the County Clerk) did not appear before the County Legislature, and the Legislature itself never even acted on, let alone approved, Mr. Caputo’s audit recommendations. Under Suffolk County Charter, article V, § C5-4 (C), the "Chairman of the pertinent legislative committee” is authorized to schedule legislative hearings to "fully explore and evaluate” the Comptroller’s "recommendations and suggestions”. The Legislature, however, took no action and never scheduled or conducted any hearings. The pertinent legislative chairman is not even identified. Despite the express format by which the Legislature is empowered to explore and evaluate the Comptroller’s recommendations, nothing was explored, and nothing was evaluated. The Suffolk County Charter spells out the duties of the Comptroller in relation to the County Legislature. Just as the Comptroller may not exceed his statutory authority to refuse to encumber money appropriated by the Legislature (Matter of Cohalan v Caputo, supra), the Comptroller may not disregard the express provisions of the statutory design relative to his audit recommendations.

Mr. Caputo, however, on his own, supplanted the Legislature and carried out his own “recommendations”, docking Ms. Leirer’s pay. The Comptroller’s power to recommend and suggest, however, is not the power to garnish or seize. In all, Mr. Caputo acted as claimant, investigator, auditor, accuser, prosecutor, and Judge, and then meted out punishment. In my view, his actions were illegal, and constituted a violation of the Charter’s express procedure and an unprecedented abrogation of due process. Nor may his actions be upheld under the common-law right of recoupment.

III.

The common-law right of recoupment “had its origin in judicial decision and was confined to actions upon contract where the defendant might set up as a defense damage occurring to himself by the breach on the part of the plaintiff of the same contract. It was merely a defense, however, and could do no more than defeat the plaintiff’s recovery and so, even where the defendant showed damages exceeding those of the plaintiff, he could not get affirmative relief in recoupment” (Note, Procedure: Meaning of Recoupment, Counterclaim and Set-off under the Code of Civil Procedure, 1 Cornell L Q 198 [1916]).

Common-law recoupment has consistently been regarded as “a defense arising out of some feature of the transaction upon which plaintiff’s action is grounded” (4 Carmody-Wait, NY Prac, Counterclaim, § 16, at 451; Bull v United States, 295 US 247, 262; see also, Annotation, Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill or cross action, 1 ALR2d 630, 666-680). It was not designed to avoid litigation by unilateral action or self help. To qualify, a recoupment claim had to arise out of the same transaction that constituted the claim of the party who brought suit (see, Seymour v Davis, 2 Sandf 239; Deming v Kemp, 4 Sandf 147; 3 Sedgwick, Damages § 1033, at 2159 [9th ed]).¹

I have not discovered and have not been informed of any instance in which recoupment at common law or by statute was ever employed as a substitute for litigation, by the expedient of seizing a wage earner’s salary for alleged underwork, as opposed to suing for it or pleading recoupment when sued (see generally, Annotation, Breach of executory contract occurring after assignment of a right thereunder as subject of recoupment against assignee, 87 ALR 187).

Because common-law recoupment involved "a mere right of reduction from the amount of the plaintiffs recovery, on the ground that his damages were not really as high as he alleged” (3 Sedgwick, Damages § 1034, at 2162 [9th ed]), it was strictly a pleading device (3 Sedgwick, Damages § 1046, at 2182 [9th ed]), defensive in nature (Peuser v Marsh, 218 NY 505, 507), and to be tested in court (Ives v Van Epps, 22 Wend 155, 156). More recent commentators have also confirmed that the common-law right of recoupment could not produce an affirmative recovery (see, Murphy, Sidetracking the FELA: The Railroads’ Property Damage Claims, 69 Minn L Rev 349), nor could it generate affirmative relief (see, Sepinuck, The Problems with Setoff: A Proposed Legislative Solution, 30 Wm & Mary L Rev 51, 113 [1988]).

A review of the principles and cases under common-law recoupment makes it plain that the doctrine was neither used nor contemplated for purposes anything like those involved here, and I submit that this ground breaking is inappropriate.

The majority, identifying the common-law right of recoupment, cites a number of cases to support its holding, and relies chiefly on Matter of Carlon v Regan (98 AD2d 544, mod 63 NY2d 1011).

Carlon (supra) however, involved a negligence and malpractice lawsuit against the State, arising out of a patient’s 22-year confinement at psychiatric facilities. The plaintiff was awarded damages, and the State was allowed to set off against them its claim for services, which the patient acknowledged and did not dispute as to its reasonableness or adequacy. The common-law right of recoupment is not mentioned in either the decision of the Appellate Division or the decision of the Court of Appeals in that case.

Other cases cited by the majority (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 182, cert denied 476 US 1115; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30) involved the power of the New York Commissioner of Health to recoup medical overpayments improperly or erroneously made to nursing homes as health care providers (see also, Matter of Klein v Axelrod, 69 NY2d 639; Matter of Westledge Nursing Home v Axelrod, 68 NY2d 862; Matter of Sreter v Axelrod, 67 NY2d 864; Matter of Cattaraugas County Nursing Home v Axelrod, 66 NY2d 1022; Matter of Mayflower Nursing Home v Office of Health Sys. Mgt., 88 AD2d 192, affd 59 NY2d 935; Matter of Fahey v Whalen, 84 Misc 2d 1040, affd 54 AD2d 1097). In contrast to the case before us, those decisions involve entirely different considerations, and implicate vastly different relationships, amid a host of elaborate procedures and regulations that govern reimbursement and adjustment of accounts and payments to nursing homes. Similarly, in Matter of Shufelt v Beaudoin (116 AD2d 422) the Rensselaer County Department of Social Services was allowed to recoup moneys paid, undeniably in error, to a public assistance recipient (see also, Matter of Couch v Perales, 78 NY2d 595).

The Comptroller cites a number of other recoupment cases, only one of which, Sailing v Koch (115 Misc 2d 514), involves salary recoupment. The decision, I believe, is not on point, and merely supports the recoupment of sums mistakenly paid and retrievable by the express terms of a collective bargaining contract. There is no such contract here, and we are dealing not with a mistake, but with challenged claims of underwork.

The only other salary recoupment case in New York is Matter of Feinberg v Board of Educ. (74 Misc 2d 371, affd 51 AD2d 548), which is instructive. In Feinberg, the employer Board sought to recoup overpayments mistakenly made to a teacher, for vacation pay to which the Board claimed the teacher was not entitled. The Board recouped the money in its entirety, and the Supreme Court directed that the Board return the money to the teacher. We affirmed, holding that the Board’s method of recoupment was illegal, and that the Board could bring a plenary suit.

As the majority points out, the Feinberg decision (supra) does not expressly reject the doctrine of salary recoupment. But it certainly does not support it. The Feinberg case dealt only with the method of recoupment of the salary in its entirety, a method we found to be illegal. Notably, the Feinberg court did not order or endorse even a partial recoupment, but instead ordered that the money be returned, and held that a plenary trial was the proper way to retrieve what the authorities claimed to be mistakenly paid wages. I believe that approach to be the proper one.

I agree with the majority that Ms. Leirer has expressly limited this proceeding to the legal question of whether the Comptroller’s actions were proper, and that no issue regarding the factual accuracy of the audit is before the court. However, I believe that the Comptroller’s actions were improper regardless of the factual issues involved, such as the number of hours worked or not worked by Ms. Leirer. Accordingly, I would grant her the declaratory relief sought, because that involves legal considerations only, and would leave the factual disputes to plenary adjudication.²

IV.

Unilateral salary docking, unsupported by legal process and carried out in the name of the common-law right of recoupment, brings with it the potential for unchecked abuse of power, vendettas, and political reprisal, if not in this instance then certainly in others. If employees or officials are believed to be lazy or errant, there are wholly lawful ways of dealing with that, and proper action should be taken diligently. The actions under review were not proper or lawful, and for that reason I would grant the petitioner the declaratory relief she sought, without prejudice to the institution of a plenary suit by the Comptroller, the procedure that our court endorsed in Feinberg (supra). In this manner, the parties may air fully their respective claims.

Accordingly, I vote to dismiss the appeal from the judgment, on the ground that it was superseded by the order made upon reargument and renewal, and to modify the order by granting the petitioner the declaratory relief she sought, without prejudice to the institution of a plenary suit by the Comptroller.

Mangano, P. J., and O’Brien, J., concur with Sullivan, J.; Rosenblatt, J., dissents in a separate opinion.

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order made upon reargument and renewal; and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, the first, third, fourth, and fifth decretal paragraphs of the judgment are vacated, that branch of the proceeding which was to prohibit the appellants from recouping moneys from the petitioner’s wages is dismissed on the merits, that branch of the proceeding which was for declaratory relief is granted to the extent that it is declared that the appellants’ recoupment of moneys from the petitioner’s wages without prior judicial approval is neither unconstitutional nor unlawful, and the appellants’ counterclaim is severed and continued; and it is further,

Ordered that the appellants are awarded one bill of costs.

1 . The common-law right of recoupment has evolved into statute in New York, culminating in CPLR 3019 (a). The 1848 Code of Procedure codified rules relative to actions that entailed setoffs, counterclaims, the recoupments, and those rules were carried into former Code of Civil Procedure § 501 to "promote justice and diminish circuity of litigation” (Seibert v Dunn, 216 NY 237, 245). In New York, CPLR 3019 (a) and its predecessor, former Civil Practice Act § 266 finally eliminated the historic limitations on set offs, which are claims unconnected with the plaintiff’s cause (see, Otto v Lincoln Sav. Bank, 268 App Div 400, affd 294 NY 798), and recoupments (Getlan v Hofstra Univ., 41 AD2d 830; see also, 3 Weinstein-Korn-Miller, NY Civ Prac H 3019.02).

2 . It would have been neither necessary nor appropriate for Ms. Leirer to start a proceeding pursuant to CPLR article 78 to challenge the audit when it was rendered. At that time the Comptroller had merely generated a document which, by law, was no more than a recommendation to be followed or not followed by the County Legislature. It was when the Comptroller acted unlawfully on his own recommendation and took Ms. Leirer’s salary that she invoked CPLR article 78 to challenge his actions, and properly so. Under the circumstances, Ms. Leirer was under no obligation to initiate litigation and challenge an audit or persuade the Comptroller to refrain from committing an illegal seizure of part of her salary.